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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, HCJ Mr. Justice Khilji Arif Hussain Mr. Justice Tariq Parvez Civil Petition No.1498 of 2011 Against order dated 04.07.2011 of Islamabad High Court, Islamabad, passed in C.M.No.140 of 2011 in W.P.No.2248 of 2009. Muhammad Afsar Petitioner(s) VERSUS Malik Muhammad Farooq Respondent(s) For the Petitioner(s) : In person. For Respondent No.1 : Syed Arshad Hussain Shah, ASC For Respondents No.2-3 : Mr. Dil Muhammad Alizai, DAG Mr. M. S. Khattak, AOR Mr. Kamran Lashari, Secretary, M/o Housing & Works Mr. Asim Ayub, Estate Officer, Qaisar Mehmood, JEO Date of Hearing : 19.10.2011 ORDER Khilji Arif Hussain, J-. Through this petition, filed under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks leave to appeal against order dated 04.07.2011, passed by Islamabad High Court, Islamabad, vide which Civil Miscellaneous Application (C.M.No.140 of 2011 in Writ Petition No.2248 of 2009), filed by respondent No.1, under Section 12(2) of Civil Procedure Code, 1908, was allowed and the judgment dated 16.03.2011 in Writ Petition Nos. 2248 of 2009 was recalled. 2. Brief facts to decide the listed petition are that the petitioner alleged in his petition that he was allotted the House No. 609-D, Street No.24, Sector G-6/4, Islamabad (hereinafter referred to as “the house in question) vide allotment order dated 23.01.2008. The petitioner first filed suit in Civil Court, Islamabad, with the prayer that the house in question may not be allotted to any one else and in consequence thereof an order was passed in favour of the petitioner to the effect the house in question may not be allotted to any one else. The petitioner in his petition alleged that some unauthorized persons are living in the house in question, without lawful allotment in their favour, which is in violation of the law and as such sought directions to the official respondents to hand over the vacant possession of the house in question after dispossessing the illegal occupants. The learned High Court, vide judgment dated 16.03.2010 after calling parawise comments directed the respondents to arrange vacant possession of the house in question in favour of the petitioner within 10 days from the date of order, with the condition that the petitioner will place on record proof that he has handed over house bearing Quarter No.450-B, G-6/1-1 to the respondents. 3. The petitioner managed allotment order of the said house in favour of his brother and sought possession of the house in question. 4. The respondent No.1 on having information about the order passed by the High Court filed an application under Section 12(2)CPC alleging that his father was allotted the said house and on his retirement from Government service on 14.10.2007 the respondent No.1 who has all along been living with his father in the house in question, being eligible, applied for the allotment under Rule 15(2) of the Accommodation Allocation Rules, 2002 well before the retirement of his father, which entitles the eligible spouses and children of the Government servants to the allotment of government accommodation which had been allotted to and was in occupation of a retired government servant at the time of his retirement. The Ministry of Housing & Works, Islamabad, issued allotment order dated 12.02.2010, in favour of the respondent No.1 allotting the house in question, which was earlier allotted to the petitioner in supersession of all previous orders. 5. The High Court after hearing the parties accepted the application under section 12(2), CPC and restored Writ Petition No.2248 of 2009 to its original number directing the petitioner to amend the petition by joining the respondent No.1 as respondent No.3. and fixed the same alongwith C.P. No. 2622 of 2010. Hence, this petition for grant of leave to appeal. 6. We have called the Secretary, Housing & Works as well as the Estate Officer to apprise the Court not only about the proceedings pending in various Courts, but also to explain the criteria on the basis of which they have allotted government accommodations, in their possession, to eligible government employees. We have also called a report from the learned District Judge, Islamabad, qua the cases pending, pertaining to the Estate Office, in various Courts. 7. As regards the cases pending in various Courts against the Estate Office, we have noted that delay in conclusion of the same mostly caused owing to non serious attitude of the officials of Estate Office and accordingly we directed that a mechanism should be adopted by the Estate Office to pursue the matters before the Courts of law and some responsible officers/officials should be deputed to check the progress fortnightly in order to avoid any mala fide on the part of the officers/officials of the Estate Office to delay the matters so as to favour the persons of their choice. 8. We have surprised to note that all the allotments till date made by the Estate office are not on the basis of first come first get, as per the General Waiting List maintained by them under Rule 6 of the Accommodation Allocation Rules, 2002 but on the basis of some extraneous consideration orders were passed by the high-ups without assigning any reason in favour of the employees of their own choice. 9. The Courts are duty bound to uphold the constitutional mandate and to keep up the salutary principles of rule of law. In order to uphold such principles, it has been stated time and again by the superior Courts that all acts should be done by the public functionaries in a transparent manner after applying judicious mind and after fulfilling all requirements. The public functionaries are supposed to adhere to the principle of transparency in the performance of their duties and are not bound to carry out/implement any order which is not in accordance with law and they are only obliged to carry out the lawful orders of their superiors and if they are being pressurized to implement an illegal order, they should put on record their dissenting notes. But unfortunately, the officers in the Estate Office not only implemented the illegal orders but apparently acted for their own personal benefits/gain. 10. As regards the petitioner he managed allotment in his favour, under the order of Federal Minister for Housing & Works who without assigning any reason by a non speaking order directed for the allotment of the house in question in favour of the petitioner. 11. Rule 29A of the Accommodation Allocation Rules, 2002 empowers the Federal Government to relax any rule governing allotment of accommodation to eligible Federal Government Servants in public interest for deserving and hardship cases and on compassionate grounds for reasons to be recorded in writing for such relaxation. 12. From a bare reading of Rule 29A of the Accommodation Allocation Rules, 2002, it appears that while exercising the powers under said rule, the Federal Government has to record justifiable reasons in writing for relaxation of the rules. Rule 6 of Rules 2002 mandate that the applications for the allotment of government accommodations when received from the applicants shall be acknowledged by the Estate Office by issuing Registration Cards and the Estate Office shall maintain a General Waiting List of the employees, who have applied for the allotment of government accommodations on the prescribed form and the employees who applied first are entitled for the allotment of government accommodations first as and when the same are made available. 13. The right accrued to an employee in General Waiting List maintained by the Estate Office under Rule 6 of the Accommodation Allocation Rules, 2002 cannot be taken away by the Federal Government on its own sweet will just because they have been empowered to relax the rules under Rule 29A of the Accommodation Allocation Rules, 2002. The denial of right of accommodation to employees under Rule 6 of the Accommodation Allocation Rules, 2002, is denial of fundamental right of life, which includes to have shelter/house as guaranteed under Article 9 of the Constitution. On reading rule 29A of the Accommodation Allocation Rules, 2002 alongwith Rule 6 of the Accommodation Allocation Rules, 2002, it appears that only in very exceptional circumstances the relaxation can be granted to accommodate a deserving government employee in public interest but for that too a justifiable reason has to be recorded by the concerned authority which is lacking in the present case. However, we would not like to dilate upon this matter, in detail, as the petition filed by the petitioner is still sub-judice before the Court of competent jurisdiction. 14. As regards respondent No.1, he sought allotment under Rule 15(2) of the Accommodation Allocation Rules, 2002, being in possession of the house in question, which was previously allotted to his father, who stood retired on 14.10.2007 from government service. Despite repeated queries made by us, the respondent No.1 has been failed to point out any rule under which an allotment order can be issued with retrospective effect and the officials/officers appeared on behalf of the Estate Office have frankly conceded that there is no such rule under which an allotment order can be given a retrospective effect. 15. We have called for a report from the Estate Office to know that how many applications are pending on General Waiting List under Rule 6 of the Accommodation Allocation Rules, 2002. From a perusal thereof, it appears that thousands of employees are waiting for allotment of government accommodations for the last many many years and some of the applications pertain to the years 1977-78, and the official respondents have failed to give any reason as to why they have not been allotted government accommodations as and when made available. The official respondents have admitted that till date no allotment has been made on merits, on the basis of General Waiting List maintained by them under Rule 6 of the Accommodation Allocation Rules, 2002. In the circumstance, while dismissing the instant petition, we direct the authorities concerned as under:- i. that in future all the allotments will be made strictly on merits on the basis of General Waiting List; and ii. Relaxation of rules under Rule 29A of the Accommodation Allocation Rules, 2002 will not be often exercised, except in the cases of hardship and that too by recording justifiable reasons for the same, after hearing the likely affected employees in the General Waiting List. Chief Justice Judge Judge ISLAMABAD 19.10.2011 Approved for reporting

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{'id': 'C.P.L.A.1498_2011.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE FAISAL ARAB CIVIL PETITION NO.1499-L OF 2012 Muhammad Imran …Petitioner(s) VERSUS City District Government through DCO Faisalabad etc. …Respondent(s) For the petitioner(s): Syed Farooq Hassan Naqvi, ASC For the respondent(s): Mr. Subah Sadiq Wattoo, A.A.G. Punjab Date of hearing: 04.08.2016 … ORDER Let the respondents as also the Government of Punjab to apprise this Court as to how the billboards/hoardings of such immense sizes which endangers the public life and property are permitted to be installed at public places, property, parks, roads, foothpaths and other such properties which are meant for public use and are annuity properties in nature, under what authority of law this is permissible. Let a concise statement be filed by the respondents as also by the Government of Punjab within 15 days. This order is being passed in line with the orders passed by this Court in a suo motu action about the billboards/hoardings and direction to be removed the same from the city of Karachi. Notice to the respondents as also the Government of Punjab. JUDGE JUDGE Lahore, the 4th August, 2016 Not Approved For Reporting Ghulam Raza/*

{'id': 'C.P.L.A.1499-L_2012.pdf', 'url': ''}

{'id': 'C.P.L.A.1499-L_2012.pdf', 'url': ''}

                                                                                                                                                                   1                                                                                                                                                                                                                                                                                                             2 C.P.L.A. No. 1515/2016                                                                                                                                                            3 C.P.L.A. No. 1515/2016

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE YAHYA AFRIDI MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Civil Petition No.1530 of 2019 (Against the order dated 04.03.2019 passed by the Lahore High Court Multan Bench Multan in F.A.O. 135 of 2011) Muhammad Arshad Anjum …Petitioner(s) Versus Mst. Khurshid Begum & others …Respondent(s) For the Petitioner(s): Mr. Ibad ur Rehman Lodhi, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent(s): Maulvi Anwar ul Haq, ASC Barrister Umer Aslam, ASC Date of hearing: 16.04.2021 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Center of controversy is land measuring 298-Kanals 4-Marlas situating in the revenue limits of Mouza Lutafpur District Multan; it originally vested with Muhammad Manzoor respondent No.6 who sold it to Muhammad Akram, Muhammad Shameer, Muhammad Khalid and Muhammad Hamid sons of Wali Muhammad for a consideration of Rs.93,18,700/- vide mutation No.1994, attested on 17.8.2005; petitioner purchased this land from its previous owners through different transactions, mutated on 26.7.2007 and 27.10.2007, respectively; it is his claim that on 7.1.2010, his request to obtain certified copies of the revenue record relating to the said land was declined by the Halqa Patwari on the ground that it was under 2 Civil Petition No.1530 of 2019 attachment; he was astonished by a Family Court decree dated 30.05.2008 whereby a suit filed by Khurshid Begum against her husband, respondent No.6 for the recovery of maintenance, dower and dowry was decreed in consequence of latter’s failure to take special oath; he also failed in appeal before a learned Additional District Judge at Multan on 15.07.2008; a Constitution petition before a learned Judge-in-Chamber of the Lahore High Court at Multan Bench met with no better fate on 5.11.2008. Baffled by the events, the petitioner first filed an objection petition on 9.1.2010, dismissed on 5.5.2010 due to pendency of an application under section 12(2) of the Code of Civil Procedure, 1908 (the Code); it was withdrawn in view of pendency of an identical application before a learned Additional District Judge, that too was dismissed on 9.4.2011, having regard to the failure of supra Constitution petition. Undeterred by successive failures, the petitioner once again approached the learned Additional District Judge for setting aside the decree with results no different than the previous; this once again brought him before the High Court with yet another setback by judgment dated 4.03.2019 to have his last recourse before us. In his arduous journey throughout, it has been his case that Family Court decree was procured through a surreptitious conspiratorial collusion that manifestly constituted “fraud and misrepresentation” within the contemplation of section 12(2) of the Code ibid and, thus, was liable to be set aside. 2. Learned counsel for the petitioner contends that suit filed by respondent No.1 against her husband was fraudulently devised, structured on a marriage certificate with interpolated entries, mischievously contrived to defeat petitioner’s legitimate rights acquired through valid transactions and as such the impugned decree, based upon a dubious conduct as well as outcome of fraud cannot sustain. Fraud vitiates the most solemn proceedings, added the learned counsel. It is next argued that exclusion of provisions of the Code barring sections 10 & 11 does not stand in impediment to examination of a plea of fraud by a party before a Family Court particularly when it is evident on the record. The spouses seemingly remained in the wedlock throughout despite an ostensible acrimonious contest for a sizable 3 Civil Petition No.1530 of 2019 chunk of land claimed as deferred dower against a petty sum of Rs.500/- as prompt are circumstances by itself intriguing, clamouring for a thorough probe, concluded the learned counsel. Contrarily, the learned counsel for the respondents argued that the land in question was given by late Muhammad Manzoor to his wife as dower and, thus, no subsequent transaction could possibly defeat her interest in the said land; according to him, it was beyond jurisdictional competence of a Family Court to adjudicate upon the issues raised by the petitioner, a business to be best attended in a plenary jurisdiction; he has also referred to the limited application of the Code in proceedings before a Family Judge. 3. Heard. Record perused. 4. Petitioner’s recourse to defend his title in the disputed land, decreed in respondent’s favour as her dower, before the Family Court and latter before the Additional District Judge, though somewhat haphazard, nonetheless, was the only option available to him. The Family Court decreed the suit, without a full- dress trial merely upon failure of respondent’s husband to take special oath, a circumstance that too prevailed with the learned Appellate Court. Ostensible contest remained restricted between the spouses without slightest breach in the nuptial bond, to the exclusion of rest of the world. Failure of petitioner’s Constitution petition in the High Court also turned out a far cry. Throughout the contest, respondent relied upon technical barricades, thus, the questions that call for our consideration are whether exclusion of the provisions of the Code of Civil Procedure, 1908 barring sections 10 and 11 thereof, stood in impediment to petitioner’s approach to the Family Court for reexamination of the judgment within the contemplation of section 12 (2) of the Code or that he should have asserted his claim of being a bonafide purchaser with consideration through an intervener in civil plenary jurisdiction? The Family Court Act 1964 (W.P. Act XXXV of 1964) (the Act) was enacted for “…… expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith”; provisions of the Qanun-e-Shahadat Order, 1984 (P.O. No.10 of 1984) and those of the Code except sections 10 4 Civil Petition No.1530 of 2019 and 11 have been excluded to achieve the legislative intent. The exclusion of normal rules of procedure and proof, applicable in civil plenary jurisdiction for adjudication of disputes in proceedings before a Family Court, is essentially designed to circumvent delays in disposal of sustenance claims by the vulnerable; this does not derogate its status as a Court nor takes away its inherent jurisdiction to protect its orders and decrees from the taints of fraud and misrepresentation as such powers must vest in every tribunal to ensure that stream of justice runs pure and clean; such intendment is important yet for another reason, as at times, adjudications by a Family Court may involve decisions with far reaching implications/consequences for a spouse or a sibling and, thus, there must exist a mechanism to recall or rectify outcome of any sinister or oblique manipulation, therefore, we find no clog on the authority of a Family Court to reexamine its earlier decision with a view to secure the ends of justice and prevent abuse of its jurisdiction and for the said purpose, in the absence of any express prohibition in the Act, it can borrow the procedure from available avenues, chartered by law. Question of non-applicability of the Code barring sections 10 and 11 thereof came up before the Court in the case of Muhammad Tabish Naeem Khan Vs. Additional District Judge Lahore and others (2014 SCMR 1365), in the said case, plea of ouster of procedure was repelled as under: “We are not persuaded to hold, that the ex parte decree dated 4.7.2008 was void, for the reason that there is no provision in the West Pakistan Family Courts Act, 1964 to strike off the defence of the petitioner, when he failed to file the written statement, thus, it (decree) should be ignored; suffice it to say that the Family Court is the quasi judicial forum, which can draw and follow its own procedure provided such procedure should not be against the principles of fair hearing and trial,…….”. In the case of Haji Muhammad Nawaz Vs. Samina Kanwal and others (2017 SCMR 321) it was reiterated that: “Family Court, whether as a trial court or an executing court, are governed by the general principles of equity, justice and fair play”. 5 Civil Petition No.1530 of 2019 Impact of fraud practiced upon tribunals exercising plenary or limited jurisdictions, respectively, cannot be procedurally classified as in all jurisdictions it unredeemedly vitiates the very solemnity of adjudication, a wrong that cannot be countenanced and must be remedied through dynamic application of equitable principles of law and such approach has been approved by this Court in a good number of cases arising out of erstwhile rent laws that too excluded wholesale application of the Code. See PLD 1975 SC 331 The Chief Settlement Commissioner, Lahore Vs. Raja Mohammad Fazil Khan and others, 1992 SCMR 917 (Tanveer Jamshed and another Vs. Raja Ghulam Haider, 1992 SCMR 1908 Mst. Fehmida Begum Vs. Muhammad Khalid and another, 1993 SCMR 226 Fazal Elahi Malis through legal heirs Vs. Miss Abida Reasat Rizvi, 1997 SCMR 1986 Haji Khudai Nazar and another Vs. Haji Abdul Bari, 2000 SCMR 540 Masjid Intizamia committee and others Vs. Anjuman-e-Falah-o-Bahbood and others, 2001 SCMR 577 Hanif and others Vs. Malik Armed Shah and another, 2005 SCMR 882 Suhail Printing Press Vs. Syed Aley Eba Zaidi, 2007 SCMR 818 Muhammad Tariq Khan Vs. Khawaja Muhammad Jawad Asami and others, 2007 SCMR 1434 Ammanullah Khan Leghari Vs. Abid Shaikh Ahmed, 2014 SCMR 1694 Sheikh Saleem Vs. Mrs. Shamim Attaullah Khan and others and 1984 CLC 2855 Abdul Salam Vs. Mrs. Tahira Zaidi. 5. Recourse to plenary jurisdiction as suggested by the learned counsel for the respondent would be a journey into a blind alley as in the face of a final decree by the Family Court, holding the field, the proposed course would inevitably lead to a chaotic collusion, if at all the petitioner ever succeed. Therefore, in the circumstances, reconsideration/reexamination of the impugned judgment and decree by the learned Family Court is the only expedient option, conducive to the interest of the contestants. The petition is converted into appeal and allowed with no order as to costs. Impugned judgment dated 04.03.2019 is set aside, as a consequence thereof, appellant’s claim in the property as mentioned in his application be attended by the learned Additional District Judge Multan before whom his application under section 12 (2) of the Code shall be deemed as pending. Since this matter is 6 Civil Petition No.1530 of 2019 pending for considerable time, the learned Court seized of the matter, in the fullness of time, shall decide it with all convenient dispatch sooner rather than later. Judge Judge Judge Islamabad 16th April, 2021 Not approved for reporting. Azmat/*

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{'id': 'C.P.L.A.1530_2019.pdf', 'url': ''}

{'id': 'C.P.L.A.1532-L_2005.pdf', 'url': ''}

{'id': 'C.P.L.A.1532-L_2005.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Iqbal Hameedur Rahman Mr. Justice Mushir Alam Civil Petition No. 1545 of 2009. (Against the judgment dated 20.7.2009 passed by the Islamabad High Court in FAO 7 of 2009) Pak Telecom Mobile Ltd. … Petitioner (s) VERSUS Pakistan Telecommunication Authority, Isl. …Respondent (s) For the petitioner (s): Mr. Hamid Khan, Sr. ASC Mr. Waqar Rana, ASC Mr. M. S. Khattak, AOR For the respondent (s): Mr. M. Akram Sheikh, Sr. ASC Mr. Khurram Siddiqui, Director (Law) Mr. Faraz Khan Jadoon, Law Officer Mr. Khalid Wazir, Asstt. Director, PTA Date of Hearing: 06.02.2014 Judgment Jawwad S. Khawaja, J. The petitioner in this case is Pakistan Telecom Mobile Ltd. which is a Company incorporated under the Companies Ordinance, 1984. It is a wholly owned subsidiary of Pakistan Telecommunication Company Ltd. (PTCL). The petitioner provides mobile cellular services under the trade name “Ufone”. The respondent is the Pakistan Telecommunication Authority (PTA) established under section 3 of the Pakistan Telecommunication (Reorganization) Act, 1996 (the Act). The respondent is mandated by law inter alia, to issue and administer licenses including those issued to mobile service providers. 2. The petitioner is a licensee operating under a license issued by PTA. The license granted by PTA to the petitioner is consensual inasmuch as the terms thereof were drawn by PTA and agreed upon by the petitioner and PTA. The license is dated August, 1998 and amongst its various terms and conditions, specifies the charges, fees etc. which the petitioner is obliged to pay to PTA. The petitioner being a business organization had applied for and obtained a license under the licensing regime which was prevalent in 1998. CP 1545 of 2009. 2 3. Previous to the petitioner, PTA had issued licenses to three mobile service providers namely, Paktel Limited (Paktel), Pak Com Limited (Instaphone) and Pakistan Mobile Communication Limited (Mobilink). The petitioner was the fourth company to which a license for mobile cellular services was issued. To enable the petitioner and the three companies mentioned above, to provide cellular phone services, it was necessary for them to be allocated frequency spectrums. After being granted licenses and being allocated frequency spectrums, the petitioner and the three other companies commenced the provision of mobile phone services to customers in Pakistan. 4. On 27.10.2008 i.e. 10 years after the grant of the above referred license in August, 1998, the petitioner received a show cause notice from PTA purporting to have been issued under section 23 of the Act. The salient features of the show cause notice which are relevant for the adjudication of the present case can briefly be set out. It was firstly stated therein that under clause 2.4 of the license, it was obligatory on the petitioner as licensee to pay charges for the use of the frequency spectrum. It was also stated in the notice that under the Pakistan Telecommunication Authority (Functions and Powers) Regulations 2006, PTA was empowered to charge and levy a fee for allocation and use of the radio frequency spectrum including an annual spectrum charge. At this point it is important to note that between the date of the license i.e. August, 1998 and the issuance of the show cause notice, the petitioner was duly paying all amounts payable by it as licensee without there being any demand by PTA for additional sums specified in the show cause notice. There was no dispute that the petitioner had omitted or defaulted in making payment of any amount due under the license. The show cause notice, however, demanded payment of an annual spectrum administrative fee (ASAF). At the time of issuance of the show cause notice, an amount of Rs.198,257,314/- was shown and demanded by PTA as outstanding ASAF payable by the petitioner. Today the amount is in excess of Rs.750,000,000/- (Rupees seventy five crores). In the show cause notice, the petitioner was also threatened with cancellation of its license in the event of its failure to make payment of the ASAF. The show cause notice was replied to by the petitioner vide letter dated 3.11.2008. 5. Although the record of the case is extensive, the dispute between the petitioner and PTA is relatively straightforward. According to the petitioner, it is not obliged to pay CP 1545 of 2009. 3 the ASAF demanded by PTA during the existence of its license. The term of the petitioner’s license ends in May, 2014. The petitioner’s reply to the show cause notice was dealt with by the PTA which passed its order on 26.3.2009 justifying the additional demand by way of ASAF. Some relevant aspects of the decision of PTA may now be briefly adverted to. It was observed by PTA that the show cause notice had been issued to the petitioner because of contravention of clause 2.4 of the conditions of the license. Much emphasis was placed on clause 2.4 during arguments. The same is, therefore, reproduced as under:- “The licensee shall also pay the charges for the use of frequency spectrum and fee for the possession of wireless telegraphy apparatus as approved by the Board”. 6. At this juncture, it is important to note that the record as well as the stance adopted by PTA is that ASAF could be imposed on the petitioner by virtue of paras 4.4 and 5.4 of the mobile cellular policy issued by the Federal Government on 28.1.2004 read with clause 2.4 of the license. Para 4.4 inter alia, provides for the spectrum administrative fee i.e. the ASAF. Para 4.4 in relevant part provides as under:- “Spectrum Administrative fees Administrative fees for radio spectrum will be set to recover the cost of administration of that spectrum. The total income generated from administrative fees for the whole spectrum should recover the reasonable operational costs of FAB incurred whilst managing, licensing and policing that spectrum”. 7. Upon a plain reading of the above stipulation of the Mobile Cellular Policy there can be no doubt that it provided a new charge by way of ASAF which was in addition to the charges which were payable by service providers under their existing licenses. It is also abundantly clear that the ASAF envisioned in para 4.4 of the Policy was the reasonable operational cost for “managing licensing and policing” and NOT for the “use” of the frequency spectrum. We are clear that use of the spectrum is by the licensee and is wholly distinct and different from the responsibility of PTA for managing, licensing and policing of the spectrum. It is equally clear that the petitioner, since 1998 had been using the frequency spectrum as there can be no mobile cellular service without actual use of the same. Learned counsel for the petitioner, with justification, asserted that the “operational cost” envisaged in the policy was meant to cover the expense incurred by PTA CP 1545 of 2009. 4 for managing etc. of the frequency spectrum and could very well be imposed through new licenses to be issued by PTA pursuant to the policy or even in the case of renewal of the petitioner’s license after its expiry. The existing license of the petitioner specifies each and every amount due from the petitioner as a licensee and thus includes the charges for the use of frequency spectrum in terms of clause 2.4 of the license. If at all there arises any issue as to charges for use of the frequency spectrum, it would firstly require the approval of FAB which would, in turn, be subject to challenge by a licensee or even by PTA under section 22 of the Act. Quite apart from the plain language of the license read in juxtaposition with the policy there is also a rational basis for distinguishing between use of the frequency spectrum on the one hand and managing, licensing and policing of such spectrum on the other. The charges for use of the spectrum are or can be market driven. Thus the licenses for use of frequency spectrum can be auctioned where prospective bidders can place a market value on the permission for use of the frequency spectrum. The ASAF under para 4.4 of the policy, however, is not market driven but is meant to recover only the “reasonable operational costs” for managing etc. 8. Para 5.4 of the policy is also relevant in helping us resolve the contention between the parties. It clearly specifies that mobile cellular licenses under the policy “will replace the existing licenses as soon as possible or at least upon expiry of the current licenses”. Thereafter there is a crucial sentence in the Policy stating that “existing operators will be encouraged to come under the purview of Mobile Cellular policy even before the expiry of their existing license”. It is thus clear from the policy itself that it was not meant to impact existing licensees who were merely to be encouraged but would not be obliged to come under the purview of the Mobile Cellular policy. This is a rational stipulation which ensures the rules of the game are not changed once the game has begun i.e. the license has become operational. Licensees entering the cellular market on commercial considerations are entitled to the certainty that financial assumptions on the basis of which they got their license remain unaltered during the currency of their licenses. 9. Learned counsel for the petitioner pointed out that the three companies namely, Paktel, Instaphone and Mobilink did voluntarily agree to the change of their license to bring the same in line with the aforesaid policy. The petitioner, however, chose not to opt for the policy and instead continued making payments in accordance with its license CP 1545 of 2009. 5 which did not contain any requirement for paying ASAF. Here we are not required to embark on a determination if the ASAF being demanded from the petitioner amounts to a “reasonable operational cost” for managing etc. of the spectrum because the ASAF is outside the scope of the existing license of the petitioner. The reliance of PTA on the Mobile Cellular Policy is itself indicative of the fact that there is no room for ASAF in the petitioner’s license. 10. From the contents of the decision of the PTA dated 26.3.2009, it is evident that PTA has misconstrued the extent and scope of its regulatory authority. It has proceeded on the erroneous assumption firstly, that the Mobile Cellular Policy contain directives and secondly, that PTA was obliged to implement such directives of the Federal Government. On both counts, the PTA has fallen in error. It is true that under section 8 of the Act, the Federal Government may issue policy directives to PTA but section 8 itself stipulates that the policy directives cannot be inconsistent with the provisions of the Act. Section 22 of the Act provides that PTA “shall have the right to modify the license or its conditions with the consent of the licensee”. The only statutory provision which allows modification of a license is sub section 2 of section 22 of the Act. This provision also envisages modification of the license by agreement between the licensee and PTA. This provision has been examined later in this judgment. The PTA, therefore, has proceeded on the premise that it is obliged to implement the policy directives which have been issued by the Federal Government by means of the Mobile Cellular Policy, 2004. Sub paragraphs viii, ix and x of para 4.1 of the decision of the PTA dated 26.3.2009 can specifically be adverted to, to highlight the misconception on the part of PTA. For ease of reference, these extracts from the order of PTA dated 26.3.2009 are reproduced as under:- viii. Regarding the licensee’s submission that it has been complying with clause 2.4 of the licence by regularly paying fees/charges under it, this could be true to the extent of making payments but since the payment is not as per our demand based on the Federal Government’s directive, we are not taking the same as payment of ASAF and, resultantly, compliance of clause 2.4 of the licence is not made out. ix. On January 02, 2006 the matter of payment of ASAF by two mobile operators/licencees, including the licensee was referred to the Federal Government for clarification vide letter No.15-26-MOB-04/FIN/PTA. Clarification regarding Mobilink was also sought as Mobilink’s licence was CP 1545 of 2009. 6 also not renewed at that time and had the same status as that of the licensee. Responding to the said letter, the Federal Government very clearly instructed that payment of ASAF is not in any case a new issue and that the Policy ensures that the existing as well as new entrants pay the ASAF as laid down in clause 4.4 of the Policy. We were further directed by the Federal Government vide the said response that PTA may determine the bench mark of ASAF as per policy and set ASAF on non-discriminatory basis across the board for all cellular operators. x. It was, therefore, implementation of the above directives of the Federal Government regarding payment of ASAF by the licensee that we sought to enforce through our letters mentioned in para 1.3 above and subsequently through the Notice.” 11. It is obvious from the above reproduced portion of the order dated 26.3.2009 that PTA has conceived itself as a subordinate department of the Federal Government rather than the independent regulator envisaged by sections 3, 4 and 5 of the Act. If section 5(1)(d) of the Act is read with section 22 thereof, it will become immediately evident that the Federal Government has no role in modifying a license issued by PTA or varying any condition thereof. This power is vested in PTA and is subject to the constraints of section 22 of the Act. The rationale for creating PTA as a regulator independent of the Federal Government by means of an Act of Parliament is to ensure that the Government has no power to interfere in the working of PTA in matters of grant and administration of licenses. The Policy directives issued by the Government under section 8 of the Act, therefore, cannot have binding affect to compel PTA to modify the terms of an existing license. 12. The decision rendered by PTA dated 26.3.2009 was challenged by the petitioner by way of appeal before the Islamabad High Court under section 7 of the Act. The appeal was dismissed by the High Court and the reason for doing so is contained in para 10 of the impugned judgment. The learned Judge-in-Chambers in the High Court agreed with learned counsel for the petitioner that PTA did not have the power to amend and enhance unilaterally the fees and charges mentioned in the license but, in our opinion, the Court fell in error by holding that the distinction between “use” and “administration” is “too technical to be accepted”. For ease of reference, para 10 of the impugned judgment is reproduced as under:- CP 1545 of 2009. 7 “I am in agreement with the learned counsel for the appellant that the phrase used “from time to time” does not mean that the authority has the power to amend and enhance the fees and charges mentioned in the license unilaterally without the consent of the licensee and without referring the matter to Corporate Law Authority. For example under Clause 2.2 of the license, the appellant is liable to pay initial fee of Rs. 50 million. The authority has no jurisdiction to modify the license fee unilaterally without resorting to the provision of Section 22. Similarly, the rate of annual Royalty cannot be changed unilaterally by the authority. The learned counsel for the appellant is right in saying that a policy can only be given legal effect through an appropriate order or statutory notification. There is no cavil with this preposition also that Clause (p) of Section 5(2) is prospective in nature and would not apply retrospectively. I am also in agreement with the learned counsel for the appellant that terms of a concluded contract cannot be changed unilaterally by one of the contracting party. However, the difficulty of the appellant is that Clause 2.4 makes the licensee liable to pay the charges for the use of Frequency Spectrum but the amount of charges has not been mentioned in the said clause nor any mechanism has been given to determine the same. I am unable to agree with the learned counsel for the appellant that the words “use” and “administration” cannot be equated together. The argument is too technical to be accepted. The learned counsel for the appellant may be correct in saying that the mechanism to determine the liability of the licensee to pay Annual Spectrum Administrative Fee was introduced in 2004 policy. But the fact of the matter is that the appellant was liable to pay under clause 2.4 of the license, charges for use of Frequency Spectrum. The liability to pay charges for use of frequency spectrum was already there under Clause 2.4 and the same was not created by the policy. The amount of charges was not provided in this clause. The charges payable were as approved by the Board. The only thing which policy 2004 in this respect has done is to provide mechanism for determination of the amount of the said charges. It cannot, therefore, be said that the appellant is not liable to pay the Annual Spectrum Administrative Fee (ASAF). One of the arguments of the learned counsel for the respondent was that the appellant was allocated a different frequency as is established from letter dated 13.5.2004 and the allocation can be treated as if the appellant has opted for the new policy. However, I am of the opinion that the allocation of frequency in GSM 1800 Band in lieu of vacation of 2.4+2.4 MHz of Bandwidth in GSM 900 Band is in terms of Clause 5.3 of the license of the appellant. The allocation of the frequency does not mean that the appellant has come within the purview of the Policy 2004”. CP 1545 of 2009. 8 There are, we say with respect to the learned Judge, inconsistencies in the above extract which arise from the untenable observation that the distinction between the “use” of frequency spectrum and its “administration” is too technical to be accepted. Far from being technical, the distinction is too obvious to be ignored. Furthermore, the financial implications of the same are enormous as has been noted above. 13. We are unable to agree with learned counsel for the PTA that it was open to PTA to decide on its own to impose an additional charge on the licensee by way of ASAF. Clause 2 of the license contains provisions setting out the entire financial obligation of the petitioner as a licensee. The frequency spectrum was allocated at the time the license was issued to the petitioner in August, 1998. The financial obligations were also put in place at the same time. The terms of the license including financial commitments were, therefore, well settled in August, 1998. Learned counsel for PTA contended that the ASAF is not a tax or a license fee but is an amount charged to recover the administrative expenses of the PTA and the Frequency Allocation Board (FAB). According to him, the amount being demanded by ASAF was on account of services rendered by PTA and FAB. This argument is not legally tenable because the PTA had set out all relevant terms and conditions including those relating to services etc. which were to be provided to licensees. Furthermore, even after the Frequency Allocation Board was established the terms of the license could not have been varied without a statutory provision empowering PTA to impose an additional levy by way of ASAF. 14. Learned counsel for the PTA next contended that imposing ASAF on licensees other than the petitioner established discrimination and violation of Article 25 of the Constitution. This contention is also misconceived because there is no discrimination. The petitioner was distinctly placed as the sole licensee which had not opted for bringing its existing license into line with the Mobile Cellular Policy. The other service providers who held licenses prior to the Mobile Cellular Policy namely, Paktel, Instaphone and Mobilink had consciously opted for such change while the petitioner had not done so. In these circumstances, it cannot be said that the petitioner was similarly placed to the other licensees. In any event since the Policy by itself and without the backing of a statute cannot suffice for the purpose of imposing an additional burden on the petitioner as CP 1545 of 2009. 9 licensee, we do not see how the PTA can demand an additional payment not covered by the existing license issued to the petitioner in August, 1998. 15. Since the ASAF is held by us to be distinct from a charge for the use of the frequency spectrum and because the ASAF has for the first time been specified by the Mobile Cellular Policy in 2004, the same cannot be forced onto an existing licensee who chooses to continue operating under an existing license. We may add at this point that even if PTA is desirous of making a modification in a license or any condition thereof the PTA is obliged to resolve any difference between it and a licensee, through consultation and negotiation. Under section 22(2) of the Act, it has been stipulated that “if the licensee and [PTA] fail to amicably resolve such difference or dispute, either party may make an application to the High Court or Tribunal” to adjudicate the difference/dispute between the parties and to settle all matters connected therewith. In the present case there is no question of PTA imposing ASAF on the petitioner. But even if PTA were desirous of imposing a user charge on the petitioner for the use of frequency spectrum, it would firstly require the approval of the FAB and thereafter it would be open to the petitioner to invoke the provisions of section 22(2) of the Act. 16. These are the reasons for our short Order dated 6.2.2014 whereby this petition was converted into an appeal and allowed. Judge Judge Judge ISLAMABAD, the 6th February, 2014 A. Rehman APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed Civil Petition No.1567-L/2019 (Against the judgment dated 26.02.2019 of the Punjab Service Tribunal, Lahore passed in Service Appeal No.3866/2016) The District Police Officer, Mianwali & 2 others …Petitioner(s) Versus Amir Abdul Majid ….Respondent(s) For the Petitioner(s): Mr. Zaman Khan Vardag, Additional Advocate General, Punjab For the Respondent(s): Mr. Kashif Ali Chaudhry, ASC along with respondent. Date of hearing: 19.11.2020. ORDER Qazi Muhammad Amin Ahmed, J.- In the wake of his nomination as one of the accused in a case of homicide, Amir Abdul Majid, respondent, a police constable, was dismissed from service; his attempts for reinstatement on the departmental side failed, however, the Punjab Service Tribunal, Lahore, vide judgment dated 26.02.2019 set aside the dismissal and re-inducted him in the service. Respondent’s acquittal by the trial Court vide judgment dated 30.05.2014 primarily appears to have weighed with the Tribunal, being assailed on the ground that his success in the criminal contest by itself would not furnish him with a ground for reinstatement in a position, meant to enforce and uphold the law. The learned Additional Advocate General Punjab has referred to the law declared by this Court to argue that respondent’s acquittal in the criminal trial, received by the Service Tribunal as a Civil Petition No.1567-L of 2019 2 justification, for his reinstatement in the disciplined force warranted interference; he has particularly taken exception to the following paragraph in the impugned judgment: “It is well settled preposition of law that once civil servant is acquitted in criminal case, then on this very charge he cannot be awarded any punishment by the department, because acquittal is for all future purposes.” 2. Heard. Record perused. 3. It is by now well settled that a civil servant facing expulsive proceedings on departmental side on account of his indictment on criminal charge may not save his job in the event of acquittal as the department still may have reasons/material, to conscionably consider his stay in the service as inexpedient; there are additional reasons to disregard his acquittal inasmuch as criminal dispensation of justice involving corporeal consequences, comparatively, requires an higher standard of proof so as to drive home the charge beyond doubt, an exercise to be routed through a procedure stringently adversarial, therefore, factuality of the charge notwithstanding, procedural loopholes or absence of evidence, sufficient enough to sustain the charge, at times occasion in failures essentially to maintain safe administration of criminal justice out of abundant caution. Departmental jurisdiction, on the other hand, can assess the suitability of a civil servant, confronted with a charge through a fact finding method, somewhat inquisitorial in nature without heavier procedural riders, otherwise required in criminal jurisdiction to eliminate any potential risk of error, therefore, the Tribunal has undoubtedly misdirected itself in reinstating the respondent, considering his acquittal as the sole criterion in isolation to the totality of circumstances whereunder he had succeeded to vindicate his position. Reference may be made to the cases of Dr. Sohail Hassan Khan and others Versus Director General (Research), Livestock and Dairy Development Department, Punjab, Lahore and others (2020 SCMR 1708), Liaqat Ali versus Government of N.W.F.P. Through Secretary Health, Peshawar and others (2011 PLC (CS) 990), Chairman Agricultural Development Bank of Pakistan and another Versus Mumtaz Khan (PLD 2010 SC 695), Government of Pakistan through Secretary m/o Finance and others Versus Asif Ali and others (2007 PLC (CS) 271), Superintendent of Police, D.I. Khan and others Versus Ihsanullah (2007 SCMR 562), Sami Ullah Versus Inspector-General of Police and others (2006 SCMR 554), Ractor Civil Petition No.1567-L of 2019 3 Comsats vs. Ghulam Umar Kazi (2006 SCMR 1894), Executive Engineer and others Versus Zahid Sharif (2005 SCMR 824), Khaliq Dad Versus Inspector-General of Police and 2 others (2004 SCMR 192), Arif Ghafoor Versus Managing Director, H.M.C., Texila and others (PLD 2002 SC 13) Mir Nawaz Khan Versus Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others (1996 SCMR 315), Talib Hussain Versus Anar Gul Khan and 4 others (1993 SCMR 2177, Mud Izharul Ahsan Qureshi Versus M/S P.I.A.C. (1994 SCMR 1608), Muhammad Nazir Versus The Superintendent of Police, Toba Tek Singh and others (1990 SCMR 1556) Muhammad Tufail Versus Assistant Commissioner/Collector (1989 SCMR 316), Muhammad Saleem vs. Superintendent of Police, Sialkot and another (PLD 1992 SC 369), Muhammad Ayub Versus The Chairman, Electricity Board, WAPDA, Peshawar and another (PLD 1987 SC 195), The Deputy Inspector-General of Police, Lahore and others Versus Anis-ur-Rehman Khan (PLD 1985 SC 134) and Begum Shams-un-Nisa Versus Said Akbar Abbasi and another (PLD 1982 SC 413). However, while reaffirming the declaration of law referred to above, nonetheless, after hearing the learned Additional Advocate General and examining the record, having regard to the peculiarity of circumstances, we do not feel persuaded to non-suit the respondent, present in person, merely on account of flawed handling of his plea by the Tribunal. 4. It is a common ground that one Ziaullah was done to death on 11.12.2011 within the precincts of Police Station City Mianwali; the occurrence took place in a lane in front of a house where the respondent lived alongside family members that included his brothers as well. According to the prosecution, the deceased was intercepted by the accused named in the crime report while he went past the lane in front of the house; respondent’s name is conspicuously missing in the array of the accused nominated in the crime report and it is alleged that he was subsequently nominated through a supplementary statement purportedly recorded the same day, a position that is belied by the site plans including the one with scale drafted as late as on 16.12.2011, irresistibly suggesting that he was taken on board much late in the day. Even otherwise the prosecution witnesses have contradicted each other on respondent’s dubious nomination. The learned trial Judge took stock of inherent discrepancies qua the respondent and held the charge against him as preposterous. In the above backdrop, respondent’s acquittal from the charge, not only vindicated his claim of being subsequently hounded on a trump up charge but also left nothing in the Civil Petition No.1567-L of 2019 4 field to conscionably view in its aftermaths his presence as detrimental or non-conducive to good order in the department wherein he otherwise boosted an unblemished career. The Court may decline in its discretion to interfere with an order, otherwise untenably contoured, nonetheless, found to be within the remit of equity and fairness tending to advance good, therefore, notwithstanding the error of approach by the Service Tribunal, we do not feel inclined to interfere with the impugned judgment in order to avoid futility of an avoidable detour. Civil petition fails. Leave declined. Judge Judge Lahore, the 19th November, 2020 Not approved for reporting Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Sardar Muhammad Raza Khan Mr. Justice Saiyed Saeed Ashhad CIVIL PETITIONS FOR LEAVE TO APPEAL NO.1569-L, 1579-L, 1597-L, 1600-L, 1622-L AND 1624-L of 2005. (On appeal from the judgments dated 8.8.2005, 11.8.2005, 3.8.2005, 9.8.2005 passed by Lahore High Court, in W.Ps.No.14277, 144667, 2758, 2889, 14111 and 14286 of 2005) CP.1569-L/2005 Sanaullah Khan and another vs. District Returning Officer, Mianwali, etc. CP.1579-L/2005 Qari Muhammad Liaquat Ali and another vs. District Returning Officer, Gujrat, etc. CP.1597-L/2005 Ghulam Shabbir Bhutta and another vs. District Returning Officer, Bahawalpur, etc. CP.1600-L/2005 Sultan Mehmood and another vs. Returning Officer, UC-118, Tehsil Liaqat Pur, Rahim Yar Khan, etc. CP.1622-L/2005 Saeed Ahmed Asad and another vs. District Returning Officer, Khushab etc. CP.1624-L/2005 Muhammad Khaliq and another vs. District Returning Officer, Gujrat etc. For the petitioners (CP 1569-L 05): Mr.Abdul Rauf Farooqui, ASC. Ch. Mehdi Khan Mehtab, AOR (Absent). (CP 1579-L/05): Mr. Farooq Amjad Meer, ASC. Mr. Mehmood Ul Islam, AOR. (CP 1597-L/05) Ch. Muhammad Ashraf Wahlah, ASC. Mr. Tanveer Ahmad, AOR. (CP 1600-L/05) Mr. S.M. Naseem Khashmiri, ASC. Mr. Mahmoodul Islam, AOR (CP 1622-L/05) Khawaja Haris Ahmad, ASC Mr. Mahmood Ul Islam, AOR (CP 1624-L/05) Khawaja Saeed-uz-Zaffar, ASC Mr. M.A. Qureshi, AOR. CP.1569-L/2005, etc. 2 For the respondents (CP.1569-L/05): Ch. Riasat Ali, ASC. Mr. M.A. Qureshi, AOR. (CP 1579-L/05) Mr. Muhammad Arif Raja, ASC Mr. C.M. Latif, AOR. (CP 1597-L/05) Mr. Saleem ud Din Aftab, ASC Mr. M.A. Qureshi, AOR Ch. Mushtaq Ahmad Khan, Sr. ASC Haji Muhammad Rafi Siddiqui, AOR (For R. 4-5 in CP 1597-L/05) (CP. 1622-L/05) Dr. A. Basit, Sr. ASC Ch. Mehdi Khan Mehtab, AOR (Absent). (CP.1624-L/05) Sh. Ziaullah, Sr. ASC. Ch. Muhammad Anwar, AOR. On Court notice (in all cases): Mr. Makhdoom Ali Khan, Attorney General For Pakistan Mr. Tahir Mehmood Khokhar, Dy.AG Dr. Danishwar Malik, Dy. AG Mr. Muhammad Hanif Khatana, Adl.AG Date of hearing: 16.8.2005 JUDGMENT Iftikhar Muhammad Chaudhry, CJ. — The petitioners have sought leave to appeal against the judgments dated 8.8.2005, 11.8.2005, 3.8.2005 and 9.8.2005 of the Lahore High Court pronounced in writ petitions No.14277, 14467, 2758, 2889, 14111 and 14286 of 2005. 2. Petitioners having failed to persuade the Lahore High Court that they are qualified to contest the election for the office of Nazim and Naib Nazim as they possessed “Deeni Sanads” equal to degrees of M.A. or B.A. and certificates of F.A. and Matric respectively but their nomination papers had wrongly been rejected under Section 152(1)(e) of the Punjab Local Government Ordinance, 2001 [herein after referred to as “the Ordinance 2001”], therefore, they instituted instant proceedings. 3. Marshaling of facts in each case in detail is not called for in view of commonality of question of law and facts involved therein. 4. Controversy relating to acceptability of “Sanads” (Asnad) of “Deeni Madaris” for contesting Local Government Elections had been the subject CP.1569-L/2005, etc. 3 matter of Writ Petitions before Provincial High Courts in recent past. Learned High Courts could not evolve unanimity on the status of these “Sanads” which resulted in dissenting judgments. Lahore High Court in Writ Petition No.14075/2005 (Muhammad Younas v. D.R.O.) vide judgment dated 3rd August 2005 concluded that in absence of equivalence certificate from the Inter Board Committee of Chairmen [herein after referred to as “IBCC”], “Sanads” issued by “Deeni Madaris” are not acceptable to meet the criteria of academic qualification of a candidate in terms of Section 152(1)(e) of the Ordinance 2001. Peshawar High Court, in Writ Petition No.1170/2005 (Muhammad Azam Khan v. Returning Officer) and High Court of Balochistan in Constitution Petitions No.359/2005, 360/2005, 372/2005, 376/2005, 395/2005, 420/2005, 427/2005 etc. gave verdicts that “Sanad” of “Deeni Madrasah” is acceptable to qualify a candidate to contest elections under corresponding provisions of Local Government Ordinances and Elections Rules applicable respectively in both the provinces. 5. Petitioners’ counsel unanimously stressed that:-- a) In absence of notice to candidates to obtain equivalence certificates of “Deeni Sanads” from competent authority, they cannot be held disqualified to contest elections under Section 152(1)(e) of the Ordinance 2001. b) “Sanads” issued by “Deeni Madaris” without equivalence certificate from UGC or IBCC are acceptable to qualify the provisions of Section 152(1)(e) of the Ordinance 2001. 6. Mr. Makhdoom Ali Khan, learned Attorney General contended that:- a) Petitioners were conscious of the fact that without obtaining equivalence certificates of “Sanads” issued by “Deeni Madaris” they were CP.1569-L/2005, etc. 4 not qualified to contest elections, therefore, they have been rightly non-suited vide impugned judgments of the Lahore High Court. b) “Sanads” without equivalence certificate from UGC/HEC or IBCC are not acceptable to meet the requirement of law. 7. At the outset, it is considered appropriate to reproduce herein below the subjects being taught to the students of “Deeni Madaris” from one of the approved institutions by University Grants Commission/Higher Education Commission [herein after referred to as “UGC”] i.e. Jamia Ashrafia (Asharafia Islamic University) Lahore to qualify examinations of different courses which are said to be equal to certificate of Matric F.A. and degrees of B.A. M.A:--- PROSPECTUS OF JAMIA ASHRAFIA (ASHRAFIA ISLAMIC UNIVERSITY), LAHORE. i. Al-Saniviyya Amma (Secondary)-2 Years ii. Al-Saniviyya Khassa (Higher Secondary)-2 Years In addition to Al-Tajweed, Al-Hadith, Al-Tauheed, Al- Seeratun Nabi, Al-Fiqha, Arabic Language, Al-Nahv, Al-Sarf, Reading & Comprehension of Arabic Text and English, the following subjects are also taught in graded manner at this stage. History of Islam, Islamic manners & behaviour, Logic, History of Arabic literature, Al-Blagha and computer training. iii. Al-‘Aliya (Graduation)-2 years. Al-Tafseer, Uloomul Quran, Al-Hadith, Mutalah-ul- Hadith, Al-Tauheed, Al-Fiqha, Usool-ul-Fiqha, Al- Faraiz, Islamic History, Islamic Culture, Objectives of Islamic Shareea, Religious & Sects, Arabic Languages, Arabic Literature, Al-Balagha & Al-nahv. iv. AL-AALIMIYYA (Master Degree)-2 Years This is the final two years course of the JAMIA leading to the Degree of Aalimiyya-reckoned equivalent to MA in Arabic/Islamic Studies. CP.1569-L/2005, etc. 5 The intense courses of study for 1st year of Aalimyya include the following subjects: 1. Al-Tafseer, 2. Usool-ul Tafseer 3. E’jaz-ur-Qur’an 4. Usool-ul-Hadith 5. Mutalahul-Hadith 6. Al-Fiqhul Islamee 7. Usool-ul-Da’wa 8. Al-Saqafatul Islamiyya 9. Al-Adyan Wal Turnq 10. Al-Tarbiya wa Turuqul Tadrees 11. Al-Bahas wal Manajeha 12. Al-Uloomul Kauniyya 13. Hafizul-Uloomul Islamee 14. Al-Tibbul Islamee The 2nd year Aalimiyya includes the study of the following subjects : 1. Al-Sahihul Bokhari 2. Al-Sahihul Muslim 3. Jamia-ul-Tirmizi wa Shamaail 4. Sunan Abi Dawood 5. Sunan Ibn-e-Maja 6. Sunan Nisaai 7. Sharha Ma’aaniul Aasor 8. Mauta Imam Malik 9. Mauta Imam Muhammad. 8. Petitioners have obtained following Sanads issued by various “Deeni Madaris”:--- S. # Name of petitioner Name of Sanad Name of Institution 1. Sanaullah Khan Shahadat-ul-Sanviat- ul-Aama (Matric) Shahadat-ul-Sanviat- ul-Khasa (F.A.) Itehad-ul-Madaris Al- Arabia, Pakistan. 2. Khadim Hussain Shahadat-ul-Sanviat- ul-Aama (Matric) Tanzeem-ul-Madaris (Ahle-Sunnat)Pakistan Jamiah Rizvia Sardar- ul-Madaris, Multan 3. Sultan Mehmood Sanad-Al-Fragh-Minal Uloom-El-Arabia Wal Islamia(B.A) Jamiah Anwar-ul- Mustafa(Regd.) Sukkur, Sindh, Pakistan. 4. Saeed Ahmad Shahadat-ul-Aalmia Fil Uloom Ul Arabia Wal Islamia (M.A) Wafaq-Ul-Madaris Al Arabia Pakistan 5. Hakeem Qari Muhammad Liaqat Ali Shahadat-ul-Aalmia Fil Uloom Ul Arabia Wal Islamia (M.A) Tanzeem-ul-Madaris (Ahle- Sunnat) Pakistan, Jamiah-tul- Ghazamia-tul-Rizvia, Lahore. 6. Pervaiz Mehdi Shahadat-ul-Sanviat- ul-Aama (Matric) Tanzeem-ul-Madaris Al-Islamia Jammu & Kashmir CP.1569-L/2005, etc. 6 9. The adversarial contentions of learned counsel for the parties call for to determine the legal status of the authorities, which are empowered to issue equivalence certificate in respect of “Sanads” of “Deeni Madaris”. 10. Following are the authorities competent to issue equivalence certificate in Pakistan:-- 1. University Grants Commission (now Higher Education Commission) is authorized to recognize and approve ‘Deeni Madaris’ and to issue equivalence certificate in respect of Sanads of Al-Aalia (Graduation), Al-Aalmia (Master Degree). 2. Inter Board Committee of Chairmen (IBCC) is authorized to grant equivalence certificate of Deeni Sanads Al-Sanvia-Aama (Secondary) and Al-Sanvia- Khasa (Higher Secondary. 11. The UGC is a statutory body, which has been created under the University Grants Commission Act, 1974 [hereinafter referred to as “the Act, 1974”]. Under its Section 8, it has to perform such functions which are not inconsistent with the provisions of this Act, or as may be prescribed or as may be incidental or consequential to the discharging of the aforesaid function, besides other functions enumerated therein and additional functions under Section 9 of the Act. 12. In exercise of such powers, the UGC had approved from time to time “Deeni Madaris” functioning under the nomenclature of Wafaq/Tanzeem- ul-Madaris and individual institutions indicating the purpose as well for which “Sanads” can be issued. Names of the institutions are as under:--- Name of Wafaq/Tanzeem/Institution 1. Wafaq-ul-Madaris, Markazi Office Gordon, Town Sher Shah Road, Multan. 2. Tanzeem-ul-Madaris Ahle Sunnat, Jamia Naeemia Rizvia, Garhi Shaho, Lahore. CP.1569-L/2005, etc. 7 3. Wafaq-ul-Madaris, Al-Salfia Hajiabad Post Code- 38600, Faisalabad. 4. Wafaq-ul-Madaris Shia, Jamia-al-Muntazar, H.Block Model Town, Lahore. 5. Rabita-ul-Maddaris-Al-Islamia, Manzoor Road, Lahore. 6. Jamia Islamia Minhaj-ul-Quran, 368 Model Town, Lahore. 7. Jamia Taleemat-e-Islamia, Sargodha Road, Faisalabad. 8. Jamia Ashrafia, Ferozepur Road, Lahore. 9. Darul Uloom Mohammadia Ghousia Bhera, District Sargodha. 10. Darul Uloom, Korangi, Karachi. [the above list finds mentioned in the case of Maulana Abdullah v. Returning Officer and others (2003 SCMR 195)]. 13. In our country educational institutions, both in the Government and private sectors, suffer from lack of uniform education policy, therefore, for the building of national cohesion by promoting social and cultural harmony and designing curricula relevant to nation’s changing social and economic needs, compatible with the basic national ideology and thereby providing massive shift from general education to more purposeful agro-technical education; to make provision for Federal supervision of curricula, preparing text-books for various classes and for maintenance of standards of education; Federal Supervision of Curricula, Text Books and Maintenance of Standards of Education Act, 1976 [herein after referred to as “the Act of 1976”] was promulgated. In exercise of powers under this Act, the Federal Government empowered the UGC to laid down criteria for acceptance of “Sanads” of “Deeni Madaris”. Thus UGC vide notification No.8- 418/Acad/82/128 dated November 17, 1982 declared that the “Sanad” of Shahadat-ul-Almiyya-Fil-Uloomil-Arabia-Wal-Islamia granted by a “Deeni CP.1569-L/2005, etc. 8 Madrasah,” whose name finds mention therein shall be considered equivalent to M.A. in Arabic/Islamic Studies for the purpose of teaching Arabic/Islamic Studies in the colleges and universities and for pursuing higher studies in Arabic and Islamic Studies. However, for employment other than teaching, “Sanad” holders were required to qualify in two additional subjects other than Arabic and Islamic Studies at B.A. level of a university. They have also to qualify in the newly introduced subjects of Elective Pakistan Studies and Islamic Studies at the B.A. level. The UGC had been issuing notifications subsequent thereto as well, on 7th June 1982 (No.8-418/Acad/84/ 1316); on 12th August 1987 (No.8-418/Acad/86/2560), and a notification of even date bearing No.8- 418/Acad/86/2573. By means of these notifications the criteria laid down in notification dated 17th November 1982 by the UGC for making “Sanads” of “Deeni Madaris” acceptable for employment purposes other than the teaching had been reiterated alongwith the names of “Deeni Madaris” recognized by it. Thus, it is a fact that from 1982 onwards the UGC by means of various notifications referred to herein-above had been dealing with the cases of a large number of students who received education in “Deeni Madaris” and were granted equivalence certificate subject to passing examination of the additional subjects at the B.A. level. Identical question came up for consideration before this Court in the case of Maulana Abdullah (ibid), wherein latest notification issued by the UGC dated 25th July 2002 was reproduced. It is significant to note that in this notification the UGC had made it clear that the “Sanad” Shahadat-ul-Almiyya-Fil- Uloomil-Arabia-Wal-Islamia (Master Degree) granted by approved Wafaq/Tanzeem-ul-Madaris and individual institutions is recognized as M.A. Arabic/Islamic studies for teaching purpose only. The word ‘only’ means “for no other purpose” (Black’s law Dictionary 5th Edition) and in CP.1569-L/2005, etc. 9 Government of Punjab v. Naila Begum (PLD 1987 Lahore 336) it was held that “the word ‘only’ found in this article cannot be ignored and plays a significant role in the interpretation of the article. According to Oxford Dictionary, word ‘only’ means, solely, merely, exclusively, or by itself alone without anything else.” 14. The Act of 1974 now has been repealed by the Higher Education Commission Ordinance, 2002 [herein after referred to as “the Ordinance 2002”]. Its Section 22 Sub-section (2) has provided safeguards to everything done or action taken under the repealed Act of 1974 . As a result thereof, all the notifications referred to herein before have been saved. Besides, Section 10(o) of the Ordinance 2002 confers functions upon the Commission to determine the equivalence and recognition of the degrees, diplomas and certificates, awarded by Institutions within the country and abroad. Thus, it is manifest that subject to passing examination of two additional subjects and newly introduced subjects of Elective Pakistan Studies and Islamic Studies at the B.A. level, “Sanad” of Shahadat-ul- Aalmia obtained by the students from Wafaq/Tanzeem-ul-Madaris and individual institutions, duly recognized by the UGC, could be used for employment purposes other than teaching and without passing examination at B.A. level from a university in four subjects noted above, these “Sanads” if issued by recognized institution by UGC/HEC, could be used for teaching purposes and for Higher Education only. 15. It may also be noted that the prospectus of one of the recognized “Deeni Madaris” i.e. Jamia Ashrafia (Ashrafia Islamic University), Lahore indicates that the “Sanads” of Shahadat-ul-Aalia and Shahadat-ul-Aalmia have been shown to be equal to degrees of Graduation and Master whereas a degree can only be granted by a University established by the Government CP.1569-L/2005, etc. 10 itself, thus, any degree granted by a private University, which is not recognized by the Government, is not acceptable. Reference in this behalf may be made to Azeezbasha v. Union of India (AIR 1968 SC 662). Relevant para therefrom reads as under thus:--- “21. Before we do so we should like to say that the words “educational institutions” are of very wide import and would include a university also. This was not disputed on behalf of the Union of India and therefore it may be accepted that a religious minority had the right to establish a university under Article 30(1). The position with respect to the establishment of Universities before the constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body from establishing a university and it was therefore open to a private individual or body to establish a university. There is a good deal in common between educational institutions which are not universities and those which are universities. Both teach students and both have teachers for the purpose. But what distinguishes a university from any other educational institution is that a university grants degrees of its own while other educational institutions cannot. It is this granting of degrees by a university which distinguishes it from the ordinary run of educational institutions. See St. David’s College, Lampeter v Ministry of Education, 1951-1 All ER 559. Thus in law in India there was no prohibition against establishment of universities by private individuals or bodies and if any university was so established it must of necessity be granting degrees before it could be called a university. But though such a university might be granting degrees it did not follow that the government of the country was bound to recognize those degrees. As a matter of fact as the law stood upto the time the Constitution came into force, the government was not bound to recognize degrees of universities established by private individuals or bodies and generally speaking the Government only recognized degrees of universities established by it by law. No private individual or body could before 1950 insist that the degrees of any university established by him or it must be recognized by government. Such recognition depended upon the will of Government CP.1569-L/2005, etc. 11 generally expressed through statute. The importance of the recognition of Government in matters of this kind cannot be minimized. This position continued even after the Constitution came into force. It was only in 1956 that by sub-s.(1) of S.22 of the University Grants Commission Act (No.3 of 1956), it was laid down that : “the right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees.” Sub-Section (2) thereof further provided that : “save as provided in sub-s. (1), no person or authority shall confer, or grant, or hold himself or itself as entitled to confer or grant any degree.” S.23 further prohibited the use of the word “university” by an educational institution unless it is established by law. It was only thereafter that no private individual or body could grant a degree in India. Therefore, it was possible for the Muslim minority to establish a university before the constitution came into force, though the degrees conferred by such a university were not bound to be recognized by Government.” In view of above principle, it is held that a degree, if issued by an institution other than a recognized university by the Government is not acceptable. Reference may be made to Section 4(c) of the University of the Punjab Act, 1973 for precedent. 16. It is worth to mention here that “Deeni Madaris” in the country are being run/managed mostly in private sector without any statutory sanction, different to other educational institutions and universities, which are functioning under the general education system. Some of “Deeni Madaris,” however, have obtained registration under the Societies Registration Act, 1860, whereas others are being run without having affiliation either with any university or Board of Intermediate and Secondary Education. Now CP.1569-L/2005, etc. 12 Government had promulgated Pakistan Madrasah Education (Establishment and Affiliation of Model Dini Madaris) Board Ordinance 2001 [herein after referred to as “Dini Madrasah Ordinance 2001”] to establish such model Madaris and model Darul-Ulooms in which the Islamic education is the main component and it includes courses and curricula of general education system. According to preamble, the object of promulgating this Ordinance is to provide for securing the registration, regulation, standardization and uniformity of curricula and standard of education of the “Deeni Madaris” imparting specialized Islamic education in Pakistan with the general education system, in order to enable recognition of equivalence of the degrees, certificates and “Sanad” awarded by such institutions, to regulate their examination system and the matters connected therewith or ancillary thereto. A cursory glance on the curricula of the Wafaq/Tanzeem-ul- Madaris and individual institutions, reproduced herein above, would show that except specialized Islamic Education, the students are not being taught a single subject of general education system enabling them to join the mainstream and compete with educated class of the country, for employment or any other purpose, including the election of Parliament and Provincial Assemblies and of Local Government. We feel sorry for a student of “Deeni Madrasah” who spends approximately same period which is spent by a student of general education system in recognized institutions but former had no future on the basis of “Sanad” except for teaching purposes in the subject of Islamiat and Arabic or for the purpose of pursuing Higher education in the same subjects, but without any future prospects in other walks of life. 17. Now adverting to the status of IBCC (Inter Board Committee of Chairmen), it is to be observed that Government of Pakistan, Ministry of CP.1569-L/2005, etc. 13 Education, issued notification No.F.5-5/90-JAE (CW) dated 22nd April 1990, which reads as under: “In exercise of the powers conferred by the Sub- Section-1 of section 3 of the Federal Supervision of Curricula, Textbooks and Maintenance of Standards of Education Act 1976 read with Notification No.D.773/76-JEA (CW) dated 4th December, 1976, the Federal Government is further pleased to appoint the Inter Board Committee of Chairmen (IBCC) to be the competent Authority for determining of equivalence of Certificate/Diplomas up to Higher Secondary level.” Later on, a meeting of 67th Equivalence Committee was held on 14th January 1996, wherein the case of a student, who had applied for equivalence certificate, was examined and recommendations were made to treat Shahada-tul-Sanvia-tul-Aama course equivalent to SSC and Shahada- tul-Sanvia-tul- Khasa equivalent to HSSC, subject to passing of English, Urdu and Pakistan Studies at respective level (SSC or HSSC) from AIOU/Boards of Pakistan in the absence of their own. In this meeting, it was further observed that Wafaq/Tanzeem-ul Madaris and individual institutions may revise their courses by including the subjects of English, Urdu and Pakistan Studies so they may have comparable package of subjects like SSC and HSSC scheme of studies, but no steps have been taken so far in this behalf, as a result whereof such certificates cannot be utilized by the students of “Deeni Madaris” for any useful purpose like the “Sanad of Shahadat-ul-Aalmia which at least can be used for teaching purposes and pursuing higher studies. It is to be seen that IBCC has also recognized/approved the same “Deeni Madaris” which are recognized by the UGC/HEC vide notification No. IBCC/ES/Misc/1219 dated 21st July 2005. CP.1569-L/2005, etc. 14 18. Khawaja Haris Ahmed, learned counsel for the petitioner (in CP.1622-L/2005) contented that under Section 152(1)(e) of Ordinance 2001, a candidate is not bound to produce a certificate of Matriculation if he has higher academic qualification than the Matriculation or Secondary School Certificate issued by a “Deeni Madrasah”. According to him “Sanads” possessed by the petitioners fulfill this condition, therefore, they were not required to produce equivalence certificate. 19. We are not inclined to entertain his arguments in view of the fact that under Section 152 (1)(e) of the Ordinance 2001, a candidate can qualify to contest the elections if he has academic qualification equivalent to Matriculation or Secondary School Certificate. Here the word “equivalent” is of much significance. This word has not been defined either in the Act or any of the statutes discussed herein-above. Therefore, reliance is to be placed on its dictionary meanings In Black’s Law Dictionary (Eighth Edition) the word “equivalent” has been defined as follows: “equivalent, adj. 1. Equal in value, force, amount, effect, or significance. 2. Corresponding in effect or function; nearly equal; virtually identical. In “Corpus Juris Secundum” (Volume 30A) the word “equivalent” has been defined as under: “equivalent. As an Adjective. Alike in significance and value; as good as; equal or identical; identical in effect; equal in worth or value, force, power, effect, import, and the like; equally good; equal so far as concerns the matter under consideration; of equal value, force, import, and effect; having equal or corresponding import, meaning, or significance; of the same import or meaning. In “Words and Phrases” (Volume 15) published by West Publishing Co., the word “equivalent” has been defined as follows: CP.1569-L/2005, etc. 15 “equivalent” To be ‘equivalent to’ means to be equal in value, to be the same, corresponding to and to be worth. The word ‘equivalent’ has been defined to mean ‘equal in value, area, volume, force, meaning, or the like; synonym: alike, identical.” A perusal of above definitions of the word ‘equivalent’ makes it abundantly clear that a “Sanad” holder should possess academic qualification having the same value as that of Matriculation Certificate. A “Sanad” cannot be considered equivalent to a Matriculation Certificate unless an equivalence certificate has been obtained from the IBCC. As discussed above the IBCC will issue equivalence certificate if a candidate has passed additional examination of English, Urdu and Pakistan Studies at SSC or HSSC level from AIOU/Boards of Pakistan. Admittedly the petitioners have not passed the examination of these subjects from any of these institutions. As such, the argument of the learned counsel has no substance. 20. Learned counsel for the petitioners contended that the Election Commission of Pakistan (ECP) had allowed to contest elections of Parliament, Provincial Assemblies, etc. by issuing a notification dated 29.7.2002 to the “Sanad” holders from Wafaq/Tanzeem-ul Madaris and individual institutions therefore, they are also qualified to contest Local Government Elections. It may be noted that firstly the notification issued by the ECP is not under discussion in present proceedings; secondly, the educational qualification for the election of Parliament and Provincial Assemblies is different from the educational qualification of a Nazim or Naib Nazim under Section 152(1)(e) of Ordinance, 2001. Therefore, confining ourselves to the extent of Local Government Elections under Ordinance 2001, the question of validity or otherwise of the notification CP.1569-L/2005, etc. 16 issued by the Election Commission of Pakistan will be considered separately at appropriate time. 21. We have examined the “Sanads” of the petitioners in each petition separately keeping in view the approved list of the recognized “Deeni Madaris” reproduced herein above. Except the “Sanad” possessed by Saeed Ahmad (petitioner in CPLA No.1622-L/2005) the “Sanads” of remaining petitioners have been issued by the “Deeni Madaris” which have not been approved/recognized by UGC/HEC. But, “Sanad” possessed by petitioner Saeed Ahmed is also not acceptable because he had not qualified examination in additional subjects, discussed herein above, from a university recognized by the Government nor equivalence certificate has been obtained by him. Thus, it is held that petitioners have failed to satisfy the requirement of Section 152(1)(e) of the Ordinance 2001 and they are not qualified to contest the Local Government Elections. 22. Learned counsel for the petitioner in CPLA No.1622-L/2005 contended that notification No.IBCC/ES/MISC/1219 dated 21.7.2005, relied upon by District Returning Officers as well as the High Court to conclude that petitioners had not obtained equivalence certificate of the “Deeni Madaris” mentioned therein, has no nexus with the present cases as after the promulgation of Dini Madrasah Ordinance, 2001 such certificate has to be issued by the Board under this Ordinance. Mr. Makhdoom Ali Khan, learned Attorney General for Pakistan stated that equivalence certificate is to be issued either by Higher Education Commission or by the IBCC but as far as the Board under Section 5(j) of the Dini Madrasah Ordinance, 2001 is concerned, it is empowered only to approve equivalence of degrees, diplomas, Sanads or certificates of the “Deeni Madaris” duly registered with the Board. CP.1569-L/2005, etc. 17 23. In this context it is to be noted that in view of above discussion, equivalence certificate is to be issued either by the UGC/HEC or by IBCC in respect of “Sanads” issued by “Deeni Madaris” recognized by the Board under Dini Madrasah Ordinance 2001 and the students have qualified the examination according to curricula provided by the Board, Therefore, argument being without force is repelled. 24. Learned counsel in CPLA No. 1579-L of 2005 contended that respondent Muhammad Sharif had no locus standi to file writ petition under Article 199 of the Constitution, challenging the “Sanad” of petitioner, as no one had raised objection on his nomination papers at the time of scrutiny. The objection so raised by the learned counsel would have no impact on his case because his “Sanad” has also been found not acceptable for the criteria discussed above. 25. Learned counsel in CPLA No. 1597-L of 2005 contended that in addition to “Sanad” issued by “Deeni Madrasah”, petitioner is also in possession of a matriculation certificate, therefore, he was qualified to contest the elections. The argument is unfounded because the matriculation certificate possessed by him has been found bogus by the High Court in view of the report from the concerned Board. 26. Learned counsel in CPLA No. 1600- L of 2005 urged that the “Sanad” obtained by the petitioner is acceptable because the “Madrasah” wherefrom he has obtained it, is affiliated with the Shah Abdul Latif Bhattai University, Khairpur Sindh. It may be noted that the “Sanad” issued by “Deeni Madrasah” having affiliation with the university would not be acceptable unless it is shown that in view of the notification dated 17th November 1982, petitioner has passed examination in additional subjects at B.A. level. CP.1569-L/2005, etc. 18 27. In CPLA No.1624-L of 2005, the “Sanad” has been obtained from a “Deeni Madrasah” of Azad Jammu & Kashmir. UGC/HEC which is not a recognized “Madrasah” by UGC/HEC nor equivalence certificate has been obtained by him. In addition to it, learned counsel for caveat relied upon a letter dated 12.8.2001, issued by the Government of Azad Jammu & Kashmir Directorate of Religious Affairs, contents whereof have not been denied by the learned counsel for petitioner. A perusal of this letter indicates that the “Sanad” of the petitioner has been found to be bogus by the concerned authority of the Government. 28. Thus, it is concluded that :- i) If “Sanad” i.e. Shahadat-ul-Aalmia-Fil-Uloom- Ul-Arabia- Wal-Islamia obtained by a candidate from a “ Deeni Madrasah” (seminary), which is duly recognized by UGC/HEC and its holder had passed examination of additional subjects as it has been mentioned in notification dated 17th November 1982 (No.8-418/Acad/82/128) issued by UGC/HEC and equivalence certificate has also been issued by Higher Education Commission under Section 10(o) of the Higher Education Commission Ordinance 2002, then it is acceptable for the purpose of employment and for any other purpose including the elections of Local Government. AND ii) “Sanad” of Shahada-tul-Sanvia-tul-Aama (SSC) and Shahada- tul-Sanvia-tul-Khasa (HSSC), if obtained by a candidate from recognized “Deeni Madrasah” by UGC/HEC and he has also passed examination of English, Urdu and Islamic Studies, from any Board of Intermediate and Secondary Education, and had obtained equivalence certificate from IBCC, in CP.1569-L/2005, etc. 19 pursuance of notification No.IBCC/ES/Misc/1219 dated 21st July 2005 read with notification No.F.5-5/90-JAE(CW) dated 22nd April 1990 he shall be qualified to contest the Local Government Elections, according to the provisions of Section 152(1)(e) of Punjab Local Government Ordinance, 2001. As a result of above discussion, impugned judgments passed by Lahore High Court are confirmed and petitions are dismissed. CJ. J. Lahore, the J. 16th August, 2005 APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 1598 OF 2016 (On appeal against the judgment dated 01.04.2016 passed by the Lahore High Court, Lahore in RSA No. 15/2009) Major (R) Pervaiz Iqbal … Petitioner VERSUS Munir Ahmad & others … Respondents For the Petitioner: Mr. Shahzada Mazhar, ASC Ch. Akhtar Ali, AOR For Respondents (1(b,c): Mr. Mehmood Ahmed Bhatti, ASC Syed Rifaqat Hussain Shah, AOR Date of Hearing: 15.01.2018 JUDGMENT FAISAL ARAB, J.- Bungalow No. 73 measuring 4.29 acres located on Quaid-e-Azam Road, Sialkot Cantt, became evacuee property upon partition of India. It was allotted to one migrant from India Syed Chiragh Ali Shah. Out of the total area of the bungalow, twelve Kanals of land were subsequently resumed by the Government and the bungalow with the remaining land was handed over to the allottee. 2. On 15.05.1984, the successors-in-interest of Syed Chiragh Ali Shah entered into an agreement with the petitioner to sell the said bungalow. While the transaction under this agreement was yet to be completed, the petitioner on 10.07.1986 entered into CIVIL PETITION NO. 1598 OF 2016 2 an agreement with respondents No. 1 & 33 (hereafter referred to as the buyers) to sell a portion of land of the said bungalow measuring seven Kanals for a total sale consideration of Rs.500,000/-. At the time of execution of this agreement, the buyers paid Rs.55,000/- as earnest money and the remaining amount of Rs.445,000/- was to be paid on 13.07.1986. This period was later extended upto 16.09.1986 by which time it was expected that the property under the earlier agreement would stand transferred in the name of the petitioner. However, as the successor-in-interests of Syed Chiragh Ali Shah did not transfer the bungalow to the petitioner on the basis of agreement with him, the petitioner in turn could not transfer seven Kanals to the buyers. It is the agreement dated 10.07.1986 which is subject matter of the present proceedings. 3. On 01.03.1987, the petitioner filed a suit for specific performance of the contract executed on 15.05.1984 with the successor-in-interests of Syed Chiragh Ali Shah. The buyers of the agreement dated 10.07.1986 were also arrayed as plaintiffs in the suit, however, during the pendency of the suit, on the application of the petitioner, the buyers were deleted from the array of the plaintiffs vide order dated 29.01.1991 who were directed to secure their rights under their agreement with the petitioner by filing a separate suit. 4. In 1994, the earlier suit filed by the petitioner against the successor-in-interests of Syed Chiragh Ali Shah was compromised in terms of a settlement agreement reached on CIVIL PETITION NO. 1598 OF 2016 3 28.11.1994 and pursuant thereto a compromise decree was passed in favour of the petitioner on 21.12.1994. While execution of the compromise decree was yet to be carried out, the buyers filed a suit on 27.10.1996 seeking specific performance of the contract dated 10.07.1986. Along with the petitioner, all the successors-in- interest of the late Syed Chiragh Ali Shah were also made party to the suit. 5. The petitioner on the basis of compromise decree passed in his suit eventually got the bungalow transferred in his name on 02.03.2000. The suit filed by the buyers against the petitioner continued and was finally decreed on 17.04.2006. The petitioner challenged the decree in appeal before the District Court on the ground that the suit was barred by time. His appeal failed. He preferred second appeal in the High Court which was dismissed. Aggrieved by such decision, the petitioner has preferred the present petition seeking leave to appeal. 6. Learned counsel for the petitioner argued that under the agreement with the buyers, the transaction was to be completed by 16.09.1986 whereas suit was filed on 27.10.1996 and in terms of Article 113 of the Limitation Act, the suit for specific performance of the contract is to be filed within three years, it was clearly barred by time. He further contended that even if the commencement of the limitation is to be reckoned from the date when the order dated 29.01.1991 in his suit was passed whereby the Court deleted the names of the buyers from the array of the plaintiffs by giving them the opportunity to seek remedy by CIVIL PETITION NO. 1598 OF 2016 4 bringing their own suit on the basis of their agreement with the petitioner, such suit ought to have been filed by the buyers within the next three years i.e. on or before 28.01.1994 however as the suit was filed as late as 27.10.1996 the same was hopelessly barred by time. In support of his argument learned counsel relied upon cases reported as Haji Abdul Karim etc. Vs. M/s Flordia Builders (Pvt) Ltd (PLD 2012 SC 247), Muhammad Bashir Vs. Hakim Ali (2000 YLR 368), Muhammad Ramzan Vs. Muhammad Qasim (2011 SCMR 249) & Overseas Pakistanis Foundation etc. Vs. Sqn. Ldr (R) Syed Mukhtar Ali Shah (2007 SCMR 569). Lakshminarayana Vs. Singaravelu (AIR 1963 Madras 24). 7. Learned counsel for the buyers, on the other hand, argued that the limitation for filing of the suit could only have started from 02.03.2000 when the successors-in-interest of Syed Chiragh Ali Shah conveyed the bungalow in favour of the petitioner. According to the learned counsel, it was this date when the cause of action accrued to the buyers and the suit filed by them in 1996 was premature, therefore, the question of it being barred by time did not arise. Learned counsel for the buyers also argued that it was also the petitioner’s case in his written statement that the claim raised by the buyers in their suit was premature, hence the plea that suit was barred by time cuts across the argument of the petitioner’s counsel. He maintained that all the three Courts below rightly decreed the suit on the basis of the evidence that came on the record and rightly did not treat the suit to be barred by time. In support of his argument learned counsel relied upon the case from Indian jurisdiction reported as CIVIL PETITION NO. 1598 OF 2016 5 Lakshminarayana Vs. Singaravelu (AIR 1963 Madras 24) and on the case of Inam Naqshaband vs. Haji Shaikh Ijaz Ahmed (PLD 1995 SC 314). 8. Under the agreement dated 10.7.1986, the petitioner agreed to sell seven Kanals which were part of the property that at that time had not yet been transferred in his name by the successors-in-interest of Syed Chiragh Ali Shah, therefore, unless such transfer takes place, there was no occasion for the buyers to seek transfer of seven Kanals of land in their names. This uncertainty continued until a compromise was reached in the suit filed by the petitioner and the property in question was eventually conveyed in the name of the petitioner on 02.03.2000. It was from this date onwards that the petitioner was legally competent to honour his commitment under the agreement entered into with the buyers. 9. The parties to the agreement dated 10.07.1986 very well knew from the very inception that unless the successors-in- interest of Syed Chiragh Ali Shah convey the property in question in the name of the petitioner the transaction could not be completed. In these circumstances, the fixation of the time under the agreement was subject to such conveyance. The real intention of the parties to an agreement has to be gathered from what they intended at the time of the execution of the agreement which in this case was that upon transfer of the property by the successors- in-interest of Syed Chiragh Ali Shah in the name of the petitioner, the petitioner would then transfer seven Kanals of land to the CIVIL PETITION NO. 1598 OF 2016 6 buyers. This intention has to be imputed to the parties to the agreement dated 10.07.1986. In the case of Lakshminarayana Vs. Singaravelu (AIR 1963 Madras 24) cited by learned counsel of the buyers, it was held in paragraph 6 as under:- “the doctrine of imputing intention to the parties to a contract which may at times be at variance with the terms of a contract reduced to writing is a doctrine which has found acceptance of late with courts. This doctrine really rests upon the principle of construing an agreement with reference to the real situation or context in which it was entered into and not relying upon the mere wording of the contract as fixing the real intention of the parties”. 10. In the above referred case, it has also been held as under:- “13. In the first case relied upon by the learned counsel for the appellant, Mallikarjuna v. Parthasarathi, ILR (1944) Mad 742 : MANU/TN/0201/1943 : AIR 1944 Mad 218, the court had to consider whether the period indicated in a contract for sale of immovable property as the time for performance was a definite period from which limitation could start. In that case the contract was entered into on 18-7-1934 and the promise contained in the contract was to execute the sale deed when both the brothers of the obligor returned to the village for the next summer vacation, that is, May-June 1935. The question was whether limitation began to run from May-June 1935. The Bench observed thus: "This is much too indefinite to be regarded as fixing a 'date' for the performance of the contract and we agree with the lower court that the period of limitation must be computed from the date of refusal to perform......" CIVIL PETITION NO. 1598 OF 2016 7 What, according to us, underlies this decision is that the words of the third column in Article 113 of the First Schedule to the Indian Limitation Act should not be literally construed but liberally construed having regard to the facts of each individual case. "The date fixed for the performance", which is the phrase occurring in the third column of Article 113, must therefore be not only a date which can be identified without any doubt as a particular point of time, but it should also be a date which the parties intended should be the date when the contract could be performed. This principle, though not explicitly stated in the decision cited, above, is in our opinion the rationale behind the ruling of the decision.” 11. In the case of Inam Naqshaband vs. Haji Shaikh Ijaz Ahmed (PLD 1995 SC 314) it was held as under:- “6. Adverting to the point at No.(iii) raised by the learned counsel for the petitioner we find that question of limitation is not a pure question of fact. It is a mixed question of law and fact. So, the High Court was quite competent to reverse the concurrent findings of the two Courts below on this issue. In the peculiar circumstances of the case, that the property was sold for Rs.5,000 and the respondent/vendee paid Rs.4,500/- as earnest money and only nominal amount of Rs.500/- was to be paid by him within a week of the agreement; that the sale deed was actually drawn up on 25.7.1963 and signed by the parties but before it could be presented before the Registrar for registration, the petitioner/plaintiff slipped away; that before expiry of the one week’s time for the performance of the contract, the father of the petitioner/defendant filed suit for declaration that he was the owner in possession of the suit property, we are of the view that the cause of action to file a suit for specific performance of agreement to sell relatable to the property which was subject matter of the suit between the father and CIVIL PETITION NO. 1598 OF 2016 8 the son/petitioner, the cause of action remains suspended till the decision of the suit against the father of the petitioner on 28.9.1966. We are convinced that it was on 28.9.1966 that the title of the petitioner over the suit property became clear. It is by now well settled that the cause of action to sue for the specific performance of the contract arises only when the vendee is in a position to perform his part of contract effectively and till such date no cause of action arises for the other party to compel him to perform his part of the contract. In the instant case, a week after the agreement, the father of the petitioner filed a suit against petitioner seeking declaration to the effect that he was owner in possession of the suit property. He also obtained a stay order. So it can safely be held that the cause of action was inchoate and incomplete and became complete on 28.9.1966 when the suit of the father was dismissed, or on 22.12.1967 when the appeal filed by the father of the petitioner against the judgment and decree dated 28.9.1966 was dismissed by the appellate Court. Before a defendant can successfully invoke the bar of limitation under second clause of third column of Article 113 of the Limitation Act, he has to prove affirmatively that more than three years before the filing of the suit he had unequivocally, unconditionally and clearly refused to perform his part of the contract. In the instant case he had not stated so.” 12. When the order of the Court dated 29.01.1991 is analyzed whereby the buyers of the agreement dated 10.07.1986 were deleted as party and set at liberty to bring their own suit against the petitioner for enforcement of their right, it becomes evident that the earlier suit was only for the enforcement of the transaction entered into between the petitioner and the successors-in-interest of Syed Chiragh Ali Shah and the buyers of the agreement dated 10.07.1986 had nothing to do with that suit except that they were dependent upon the petitioner’s success in CIVIL PETITION NO. 1598 OF 2016 9 that suit. The order of the Court dated 29.01.1991 only acknowledged the right of the buyers to file their own suit to seek specific performance of the agreement. Even when the buyers filed their suit in 1996, the petitioner had not gained the title to the property in question hence their claim was still premature. The cause of action could have only arisen to the buyers when the petitioner had come in the position to complete the transaction with them and that accrued on 02.03.2000 when the property in question was conveyed in the name of the petitioner therefore no decree prior to this date could have been passed in favour of the buyers compelling the petitioner to convey seven Kanals of land out of the property in question. The fact that the suit filed in 1996 was premature was acknowledged by the petitioner in his written statement. When the petitioner himself took this plea then taking the plea of limitation would in fact amount to taking mutually destructive pleas because if the suit is considered to be premature, it cannot be said to be barred by time and if the suit was barred by time then it cannot be said to be premature. Undoubtedly, the cause of action accrued to the petitioner on 02.03.2000 when the title of the property in question was transferred in his favour and at that time suit for specific performance of contract dated 10.07.1986 was already pending, therefore, question that it was barred by time did not arise at all. 13. We are, therefore, of the view that the trial court has rightly decreed the suit for specific performance of the contract in terms of the agreement dated 10.07.1986, which was upheld in appeals both by the District Court and the High Court. However, CIVIL PETITION NO. 1598 OF 2016 10 we are of the view that pursuant to the agreement, possession was handed over to the buyers whereas they retained the balance sale consideration of Rs.445,000/- with them till the same was deposited with the Nazir under the orders of the Trial Court. In the circumstances, the petitioner shall be entitled to a sum of Rs.3,000,000/- as equalizer over and above the balance sale consideration, which shall be deposited with the Nazir of the Trial Court within a period of two months. 14. The above are the detailed reasons of our short order dated 15.01.2018 when we converted this petition into appeal and partly allowed it in the following terms:- “For the reasons to be recorded later, this petition is converted into appeal and partly allowed. Decree for specific performance of contract is maintained with the modification that the respondent will deposit an amount of Rs.30,00000/- over and above the amount already deposited with the trial court within a period of two months.” JUDGE JUDGE JUDGE Islamabad, the 15th of January, 2018 Approved For Reporting Khurram

{'id': 'C.P.L.A.1598_2016.pdf', 'url': ''}

{'id': 'C.P.L.A.1598_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 160-K OF 2016 (On appeal against the judgment dated 26.11.2015 passed by the High Court of Sindh, Karachi in R.A. No. 98/2007) Syed Hakeem Shah (dece) through LRs and others … Petitioners VERSUS Muhammad Idrees and others … Respondents For the Petitioners: Mr. Jamil Ahmed Virk, ASC For CBA: Mrs. Abida Parveen Channar, ASC Mr. Ghulam Qadir Jatoi, AOR Date of Hearing: 21.12.2016 ORDER FAISAL ARAB, J.- Respondent No. 1 filed a suit for specific performance in 1993 against respondent No. 2 claiming that an area of 2250 square feet in the basement of Nairang Shopping Centre, Nairang Complex, Karachi was sold and possession delivered to him in the year 1980 for a total sale consideration of Rs.200,000/- but the sublease could not be registered in his name as there was a ban on such transfer. The suit was resisted by the petitioner on the ground that respondent No. 2 has sold the property to respondent No. 3, who then gifted the same to respondent No. 4 and then the respondent No. 4 sold the suit property to the petitioner and he is a bona fide purchaser. The learned Trial Court vide judgment dated 29.05.2003 dismissed the suit. Feeling aggrieved, respondent No. 1 filed appeal before the Appellate Court, which was accepted and the suit of the respondent No. 1 was decreed. The petitioner then filed Civil Revision before the High Court, which was dismissed vide impugned judgment. Hence, this petition. Civil Petition No. 160-K/2016 2 2. Insofar as the merits of the case are concerned, the learned counsel for the petitioners did not point out any misreading or non-reading of evidence. The only points that were pressed before this Court were that the suit was barred by time as the same was filed in 1993 for a transaction that took place in 1980. The other point was that the suit was undervalued. 3. Insofar as the plea of limitation is concerned, the factual position is that the claim of the respondent No. 1 was that he paid the entire sale consideration and was also handed over possession of the suit property and only the sublease was not being executed by the seller. In this background, when the sale consideration is totally paid and possession was also delivered to respondent No. 1 and only on account of the ban on the registration of leases that transfer document was not executed, the respondent No. 1 was well within his right to seek execution of the sublease in his favour when the ban was lifted and when respondent No. 2 unlawfully entered into sale transaction with the respondent No. 3. In this background, it cannot be said that suit was barred by time. In the case of Muhammad Nawaz Magsi Vs. Illahi Bux (2010 CLC 407), the High Court of Sindh in similar circumstances dealt with the issue of limitation as under:- “14. Section 53-A of Transfer of Property Act in itself creates a right in favour of a transferee to retain possession. Such right comes into existence when transferor puts the transferee in possession in part performance of the contract. The right created by section 53-A in favour of the transferee in possession could be termed as an equitable title which he holds in the property. Hence where a transferee is enjoying possession of a property pursuant to an agreement to sell and such right is threatened by the transferor or a person claiming under him or even by a stranger then the transferee becomes entitled to defend his existing right in a Court of law. While defending so it matters not whether he goes to the Court as a plaintiff or is sued as a defendant. Normally suit is filed against the transferee in possession either by the transferor or a person claiming under him which threatens the transferee his enjoyment of possession. Faced with such a situation, the transferee in possession defends his possession by virtue of section 53-A of the Civil Petition No. 160-K/2016 3 Transfer of Property Act. However, there can be a situation, where instead of transferor or a person claiming under him files a suit against the transferee in possession, the transferor or a person claiming under him creates such a situation which threatens the transferee his possession and compels him to seek protection of the Court. In such a situation, the transferee brings his own suit against the transferor or the person claiming under the transferor in order to defend his right to retain his possession. Even as a plaintiff, the relief that is sought by a transferee in possession from the Court under section 53-A of the Transfer of Property Act is perseverance of his possession of the property. Thus in both the positions i.e. plaintiff or defendant, the transferee in possession is defending his equitable title that he has already acquired in the property under his possession by virtue of section 53-A of Transfer of Property Act. Why a transferee in possession should wait for an action to be brought against him by the transferor or any person claiming under the transferor or a stranger to exercise his right to retain possession under section 53-A of Transfer of Property Act. Why not the transferee in possession when threatened should himself establish in a Court of law the legality of his possession by filing his own suit. If the right to seek protection under section 53-A of the Transfer of Property Act is construed to be only available to a transferee if he is sued as a defendant in a suit then it would create an anomalous situation. It would then mean that it is the capacity in which a transferee in possession finds himself in a suit i.e. as a plaintiff or a defendant, which would determine whether the protection under section 53-A of the Transfer of Property Act is to be extended to him. This does not appeal to reason. The right conferred upon a transferee in possession under section 53-A should not depend upon how he is described in a suit i.e. plaintiff or a defendant. This cannot be the object of the lawmakers. Statutory protection granted under section 53-A of the Transfer of Property Act is available to a transferee in possession and it matters not whether he is a plaintiff or a defendant in a suit. His status as a plaintiff or defendant in a suit will be of no legal consequence while deciding his entitlement under section 53-A of Transfer of Property Act. In any of the two capacities, the transferee in possession is defending his right to retain possession, which he is already enjoying. When the transferee files his suit, he is doing nothing but defending his existing right of possession, which he is already enjoying by virtue of section 53-A of the Transfer of Property Act. The right of a Civil Petition No. 160-K/2016 4 transferee in possession granted under section 53-A of Transfer of Property Act can be availed by him whether he files his own suit or is sued as defendant. Therefore, a transferee in possession can always file suit of his own seeking the relief of permanent injunction in order to preserve his equitable title i.e. the right to enjoy possession of the property in the wake of any threat either from the transferor or any person claiming under him or even a stranger. Reliance is placed on the case of Ahmed Mujtaba Khan versus Iqbal Shah reported in 1990 CLC 1381 and a Division Bench case of Inayat Ullah v. Shah Muhammad reported in PLD 1961 Lah. 372 where it has been held that a transferee of immovable property can defend his right guaranteed to him under Section 53-A of Transfer of Property Act, whether he defends this right in his capacity as a plaintiff or a defendant. 15. It may also be mentioned here that though for filing a suit for specific performance of a contract, the prescribed period of limitation is three years but as the applicant has filed his suit on the basis of agreement to sell which is coupled with transfer of possession and has also sought the relief of, permanent injunction, the statute of limitation would not come in his way. Where a plaintiff continue to enjoy a right then the statute of limitation cannot take away such a right as the law of limitation is not meant to take away an existing right. It only bars remedy to gain one's lost right. The right created under section 53-A of Transfer of Property Act is an existing right and is not extinguished by any length of time. There cannot be any expiry date for enjoyment of a right conferred upon a transferee in possession under section 53-A of the Transfer of Property Act. Therefore, the law of limitation does not come in the way of a transferee in possession when he as a plaintiff, files his own suit to preserve his right to retain possession that is granted to him under Section 53-A of the Transfer of Property Act. 16. It may also be added here that while granting the relief of permanent injunction to transferee in possession under Section 53-A of the Transfer of Property Act, the Court may also direct the parties to complete the transaction under the agreement to sell. This would certainly close doors to future litigation and would also perfect the equitable title of the transferee in possession. There is no reason to deny this to the transferee in possession when it was the transferor who in the first place failed to discharge his obligation under the contract.” Civil Petition No. 160-K/2016 5 4. In view of the reasoning of the above quoted judgment, the question of respondent No.1’s suit being barred by time does not arise at all. So far as the issue of undervaluation is concerned, an issue was though framed but the petitioner failed to establish the same. The Appellate and Revisional Courts rightly dealt with the controversy and their findings are unexceptionable. 5. For what has been discussed above, we do not find any merit in this petition, which is dismissed and leave is refused. JUDGE JUDGE Karachi, the 21st of December, 2016 Approved For Reporting Khurram

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{'id': 'C.P.L.A.160-K_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB MR. JUSTICE SAJJAD ALI SHAH CIVIL PETITION NO. 1616 OF 2018 (On appeal against the judgment dated 26.04.2018 passed by the Islamabad High Court, Islamabad in Writ Petition No. 2907/2017) Khawaja Muhammad Asif … Petitioner VERSUS Muhammad Usman Dar and others … Respondents For the Petitioner: Mr. Munir A. Malik, Sr. ASC Mr. Rashdeen Nawaz Kasuri, ASC Mr. Zahid F. Ebrahim, ASC Assisted by: Ch. Najam-ul-Hassan, Advocate Mr. Ahmed Nawaz Chaudhry, AOR For the Respondent (1): Mr. Sikandar Bashir Mohmand, ASC Mr. Tariq Aziz, AOR For the Respondent (2): N.R. For the Respondent (3): Mr. Waqar Chaudhry, DPA (Litigation) Dates of Hearing: 07.05.2018, 21.05.2018, 31.05.2018 & 01.06.2018 JUDGMENT FAISAL ARAB, J.- The petitioner has impugned the decision of the Islamabad High Court dated 26.04.2018 rendered in a constitution petition in which respondent No.1 succeeded in obtaining a writ in the nature of quo warranto against the petitioner, who was a member of the National Assembly and holding the portfolio of foreign minister. The case of respondent CIVIL PETITION NO. 1616 OF 2018 2 No.1 before the High Court was that the petitioner whilst holding public offices in Pakistan continued to serve a UAE based company called the International Mechanical & Electrical Company LLC as its fulltime employee. It was submitted that the petitioner held the portfolio of federal minister for Water & Power from 08.06.2013 to 28.07.2017 and foreign minister from 04.08.2017 to 26.04.2018 and hence not only violated the oath of his office and the rule of conflict of interest but also failed to disclose his monthly salary derived from such employment in the statement of assets and liabilities filed under the provisions of Sections 12 (2) (f) and 42A of the Representation of the Peoples Act, 1976, now repealed (RoPA for short) and thus stood disqualified to be member of the National Assembly. 2. Disqualification of the petitioner was also sought on the ground that no income tax on salary derived from employment with the UAE Company was paid, which was his obligation under Section 102 of the Income Tax Ordinance, 2001. Yet another ground on the basis of which disqualification was sought that the petitioner failed to declare a sum of AED 5,000/- in his statement of assets and liabilities which were lying deposited in his account bearing No. 6201853775 maintained with National Bank of Abu Dhabi, UAE on the date when he filed his nomination paper. 3. In the impugned judgment the reasons that mainly prevailed with the learned High Court in disqualifying the petitioner under Article 62 (1) (f) of the Constitution were; that the petitioner’s employment with a UAE based company at the time CIVIL PETITION NO. 1616 OF 2018 3 when he was a member of the federal cabinet has given rise to serious questions of conflict of interest; that the source of income from foreign employment and the salary derived therefrom was not appropriately disclosed by the petitioner in his nomination paper as only ‘business’ was declared to be his source of income; that the petitioner did not pay income tax on the foreign salary under Section 102 of the Income Tax Ordinance, 2001 and; that the petitioner failed to declare a sum of AED 5,000/- that were lying deposited in his account No. 6201853775 maintained with National Bank of Abu Dhabi in a UAE bank. Aggrieved by this decision of the High Court, the petitioner has filed the present petition. 4. Learned counsel for the petitioner argued that the High Court erred in not considering the fact that the entire controversy was put at rest in the election petition which ought not to have been set at naught in a fresh round of litigation initiated through a quo warranto proceedings on account of the bar contained in Article 225 of the Constitution. On merits of the case he submitted that the petitioner was justified in describing his occupation as business, which was his dominant source of income; that the petitioner had disclosed his monthly salary settled under the foreign employment contract in the tax return filed with the nomination papers and as no cash was left in hand from such salary in the form of savings, all being already spent, after stating the salary to be AED 9,000/- the figure ‘0’ was written in the tax return, hence it cannot be said that income from salary was concealed and; that non-disclosure of a sum of AED 5,000/- lying deposited in petitioner’s UAE bank CIVIL PETITION NO. 1616 OF 2018 4 account No. 6201853775 was only an honest omission. He submitted that in the presence of these facts, there was no basis for the High Court to conclude that the petitioner fell short in fulfilling the condition of honesty as envisaged in Article 62 (1) (f) of the Constitution, particularly when there were no allegations of embezzlement, bribery or misappropriation of public property was made against him in the writ petition. 5. In rebuttal, learned counsel for respondent No. 1 argued that by declaring his occupation to be business, the petitioner concealed the fact that he also derived income from salary under a written employment contract executed with the UAE based company; that he took employment with UAE based company while holding the portfolios of Defence and Finance Minister, which raised the question of conflict of interest; that no income tax was paid on his foreign salary income under the laws of Pakistan. Lastly it was argued that the petitioner also failed to list AED 5,000/- as one of his assets which were admittedly lying deposited in his bank account maintained with the National Bank of Abu Dhabi at the time of filing his nomination paper and hence failed to demonstrate himself as an honest person in terms of Article 62 (1) (f) of the Constitution. 6. Before we proceed to examine the merits of the case, we find it appropriate to first discuss the scope of Article 62 (1) (f) of the Constitution in matters that relate to failure of an elected member of the National Assembly or a Provincial Assembly to declare his assets in his nomination paper. CIVIL PETITION NO. 1616 OF 2018 5 7. The provisions of election laws are designed to facilitate the general public to know what assets the contesting candidates own and what liabilities they owe before they are elected and what variation has taken place in their assets and liabilities on a year on year basis after being elected. Hence the election laws require every contesting candidate to file his or her statement of assets and liabilities and when elected was required to declare his assets and liabilities every year with the Election Commission. In this manner the net-worth of all elected members is maintained on the records of the Election Commission which is useful in noticing changes that may have occurred in their assets and liabilities after entering upon their office. In case an asset not declared by an elected member comes to light, his details of assets and liabilities would help in ascertaining whether concealment was intended to cover some wrongdoing. The whole purpose behind seeking details of assets and liabilities under the election laws is to discourage persons from contesting elections for a seat in the Parliament or a Provincial Assembly who have concealed assets acquired through some wrongdoing. Simultaneously it also aims at those members as well who hitherto may have held untainted record, be discouraged from indulging in corruption and financial wrongdoings after entering upon their office. Hence whoever contests an election for a seat in the Parliament or a Provincial Assembly, is mandatorily required by law to be forthright in declaring all his assets which he owns and all liabilities he owes. Before RoPA was repealed and replaced by the Election Act, 2017 it was applicable to the all candidates who contested the 2013 CIVIL PETITION NO. 1616 OF 2018 6 elections. Under Section 12 (2) (f) of RoPA where an asset owned by a contesting candidate was not declared at the time of filing of the nomination paper for any reason and such non-disclosure was timely brought to the notice of the Returning Officer, he had the power to reject the nomination paper under Section 14 (3) (c) of RoPA. Such rejection was avoidable under proviso (ii) of Section 14 (3) (c) of RoPA which states that the Returning Officer shall not reject a nomination paper where the defect was remedied forthwith. In case the defect was not remedied and the nomination paper was rejected, even then, in terms of the proviso (i) to Section 14 (3) of RoPA, such candidate was still competent to contest the election if he had filed another nomination paper either in the same constituency or in another constituency that fulfilled all the requirement of Section 12 (2) (f) of RoPA. In case he has not chosen to contest elections from any other constituency, he still remained eligible to contest any future election and the earlier rejection of his nomination paper would not be an obstacle merely on account of non-compliance with the requirements of Section 12 (2) (f) of RoPA. So where an omission to declare an asset had been pointed out by any rival candidate to the Returning Officer at the appropriate stage of the election process, it would at best result in rejection of the nomination paper. Where the objection to seek such rejection has failed before the Returning Officer or before the Election Tribunal constituted to hear Election Appeals before the elections or the time to throw such challenge has gone by, the stage to challenge the candidature of a contesting candidate at pre-polling stage comes to an end. After the elections, the rival candidate may choose to file an election petition before the Election Tribunal to CIVIL PETITION NO. 1616 OF 2018 7 challenge the candidature of an elected member for non-compliance with the provisions of elections laws. When the above stated stages of challenge under the election laws are over, the belated awakening of the rival candidate to point out any omission with regard to non-declaration of an asset would be hit by the bar contained in Article 225 of the Constitution. However, there is exception to this rule of finality, which we shall now proceed to discuss. 8. It may so happen that an undeclared asset of an elected member that stands in his own name or in the name of his spouse or dependent children or any of his business entities gets discovered after the time to challenge an election under the election law has expired and had it been declared it would have exposed his dishonesty qua such an asset. The right time to call in question such concealment would obviously arise when such a fact becomes known, therefore, no cutoff period can be fixed or legal bar can be imposed to seek a declaration of dishonesty with regard to such an asset that remained concealed from the records of the Election Commission. We may clarify here that this declaration of dishonesty cannot be sought from the Returning Officer at the time of raising objections to a nomination as his scope of work is only to scrutinize the nomination papers in a summary manner within two to three days and at the most reject a nomination for non- compliance with the requirement of making requisite declarations but not to pass a judicial verdict on the issue of honesty of a contesting candidate in terms of Article 62 (1) (f) of the Constitution. Thus upon finding a nomination paper to be CIVIL PETITION NO. 1616 OF 2018 8 noncompliant with the election law all that a Returning Officer can do is to reject a nomination paper without attributing any sort of dishonesty to the contesting candidate. It is only when a contesting candidate has already been declared disqualified under Article 62 (1) (f) of the Constitution by a competent court of law that the Returning Officer can reject his nomination paper straight away on that basis. Hence where an undeclared asset that had remained concealed from the records of the Election Commission comes to light and some dishonest act is associated with such an asset then the court of competent jurisdiction would scrutinize the issue of disqualification within the ambit of Article 62 (1) (f) of the Constitution. If the outcome of the scrutiny is that a declaration of dishonesty is to be made then the court would make such a declaration or it may in the first instance choose to put the investigative machinery of the state into motion. Based on the material coming on the record the test of honesty would be applied and in case the elected member is found dishonest he would be disqualified for life. 9. While considering a case of dishonesty in judicial proceedings what should not be lost sight of is that on account of inadvertence or honest omission on the part of a contesting candidate a legitimately acquired asset is not declared. This may happen as an honest person may perceive something to be right about which he may be wrong and such perception cannot necessarily render him dishonest though the omission would invariably result in rejection of his nomination paper had such a fact is pointed out to the Returning Officer at the time of scrutiny CIVIL PETITION NO. 1616 OF 2018 9 of nomination papers or in proceedings available under the election laws. There are many conceivable instances where an omission to declare an asset on the face of it cannot be regarded as dishonest concealment. For example, where an inherited property is not declared on account of mistake of fact or an asset acquired from a legitimate source of income is not listed in the nomination paper. Suchlike omissions at best could be categorized as bad judgment or negligence but certainly not dishonesty. As mentioned earlier even the proviso to Section 14 (3) (d) of RoPA envisaged that rejection of a nomination paper on account of failure to meet the requirements of Section 12 of RoPA would not prevent a candidate to contest election on the basis of another validly filed nomination paper. Hence mere omission to list an asset cannot be labeled as dishonesty unless some wrongdoing is associated with its acquisition or retention which is duly established in judicial proceedings. In our view attributing dishonesty to every omission to disclose an asset and disqualify a member for life could never have been the intention of the parliament while incorporating Article 62 (1) (f) in the Constitution. All nondisclosures of assets cannot be looked at with the same eye. In our view no set formula can be fixed with regard to every omission to list an asset in the nomination paper and make a declaration of dishonesty and impose the penalty of lifetime disqualification. In a judgment from the foreign jurisdiction in the case of Aguilar vs. Office of Ombudsman decided on 26.02.2014 by the Supreme Court of Philippines (G.R. 197307) it was held that dishonesty is not simply bad judgment or negligence but is a question of intention. There has to exist an element of bad intention with regard to an undeclared CIVIL PETITION NO. 1616 OF 2018 10 asset before it is described as dishonest. Unless dishonesty is established in appropriate judicial proceedings, Article 62 (1) (f) of the Constitution cannot be invoked to disqualify an elected member for life. 10. Where a matter with regard to an undisclosed asset is taken to court, it would not form the opinion that it is a case of dishonest concealment without first calling upon the elected member to explain the source from which such an asset was acquired. Where no satisfactory explanation is forthcoming and the undeclared asset also does not commensurate with the elected member’s known sources of income, it would give rise to the presumption that unlawful means may have been applied with regard to such an asset. It is the credibility of the explanation that would be the determining factor as to whether nondisclosure of an asset carries with it the element of dishonesty or not. The test of honesty with regard to non-disclosure of assets and liabilities is to be applied in that context only and certainly not in a case where a clean asset has not been declared on account of bad judgment or inadvertent omission. In the impugned judgment, the learned High Court itself was conscious of the fact that where there is a case of non-disclosure of an asset the same ipso facto does not render a person to be dishonest. In this regard, a judgment of this Court cited by respondent No. 1’s counsel in the case of Rai Hassan Nawaz Vs. Haji Muhammad Ayub (PLD 2017 SC 70) was referred where it was held as follows:- CIVIL PETITION NO. 1616 OF 2018 11 “8. We, therefore, observe that any plausible explanation that exonerates, inter alia, mis-declaration of assets and liabilities by a contesting candidate should be confined to unintended and minor errors that do not confer any tangible benefit or advantage upon an elected or contesting candidate. Where assets, liabilities, earnings and income of an elected or contesting candidate are camouflaged or concealed by resort to different legal devices including benami, trustee, nominee, etc. arrangements for constituting holders of title, it would be appropriate for a learned Election Tribunal to probe whether the beneficial interest in such assets or income resides in the elected or contesting candidate in order to ascertain if his false or incorrect statement of declaration under Section 12(2) of the ROPA is intentional or otherwise. This view finds support from the statutory aim and purpose of requiring all contesting candidates to file their statements and declarations as envisaged in Section 12(2) of the ROPA. Clearly there is a public interest object behind the statutory prescription for obtaining the said statements and declaration. It is to ensure integrity and probity of contesting candidates and therefore all legislators. 11. The above discussed essential element of disqualification with regard to non-declaration of an asset within the ambit of Article 62 (1) (f) of the Constitution has also been recognized in a recent judgment of this Court in the case of Muhammad Hanif Abbasi Vs. Imran Khan Niazi (PLD 2018 SC 189) wherein in paragraphs 100 and 103 holding as under:- CIVIL PETITION NO. 1616 OF 2018 12 “100. In the passage referred above, the Court is addressing an undisclosed asset, existence whereof is expressly admitted through the coffers of an entity whose financial dealings were already doubted and formed part of the network of persons and entities allegedly holding disproportionate assets attributed to the erstwhile Prime Minister, his dependents and benamidars. It cannot, therefore, be contented that dishonesty is attributed in the said judgment without reference to any alleged design, intention, scheme, background or impropriety. Consequently, to our minds the larger Bench has not expunged the requirement of establishing the "dishonesty" of conduct of an aspirant or incumbent member of a Constitutional Legislature in order for the disqualification under Article 62 (1) (f) of the Constitution and Section 99 (f) of the ROPA to be attracted. Each and every word in the Constitution bears a meaning and place, which must be given effect because redundancy cannot be assigned to the Constitution. Accordingly, in earlier judgments by this Court in the matter of "dishonest conduct," violation of constitutional norms required by Article 62 (1) (f) in its phrase "honest and ameen" have been deduced with caution and care……….. To the same effect are observations made in Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817). CIVIL PETITION NO. 1616 OF 2018 13 103. The insistence by learned counsel for the petitioner that any error or omission in the declaration of assets by a candidate for election or a legislator incurs his disqualification under Article 62 (1) (f) of the Constitution posits a wide proposition of law. If at all, this may have limited relevance where the context involves corruption or money laundering in state office, misappropriation of public property or public funds, accumulation of assets beyond known means or abuse of public office or authority for private gain. These allegations are not germane to the present case. There is no involvement here of public property or funds, abuse of public office and authority, corruption or breach of fiduciary duty. Consequently, the argument of the learned counsel for the petitioner on this score fails. 12. Making differentiations and distinctions are the tools that are always applied in judicial proceedings in the determination of the penalties and punishments, therefore, the notion of proportionality and making distinctions cannot be lost sight of while considering an omission to declare an asset. Intervention through a writ in the nature of quo warranto in financial matters against an elected member can only be justified when non-disclosure of an asset is meant to conceal a wrongdoing. As law does not envisage that every rejection of nomination paper on account of non-disclosure of an asset would lead to disqualification under Article 62 (1) (f) of the Constitution therefore unless some wrongdoings associated with an undeclared CIVIL PETITION NO. 1616 OF 2018 14 asset is established the outcome of the case would not culminate into disqualification for life. 13. Having discussed the circumstances in which Article 62 (1) (f) of the Constitution can be invoked in the matters relating to declaration of assets, we shall proceed to examine the first ground of attack with regard to the petitioner’s employment contract executed with a UAE based company that required him to serve as a fulltime employee in UAE on monthly salary basis. 14. Before the High Court both the petitioner’s counsel and the UAE Company which expressed its stand by filing a certificate, had maintained that the petitioner was not required to be physically present in UAE to serve the company. It was stated that he was to render advice on phone only. The learned High Court however in its decision treated the petitioner as a fulltime employee who served the company with his physical presence in UAE. In this background, what needs to be examined is whether the petitioner actually went to UAE to serve the company or rendered advice on phone or was the employment contract intended to whiten black money. From the amalgam of these divergent situations truth needs to be spotted. 15. It is highly inappropriate for a parliamentarian or member of a provincial assembly, who holds a position in the cabinet, to take a fulltime job in a foreign country where in terms of the written contract he is committed to work six days a week, however at the same time it seems highly improbable that a person CIVIL PETITION NO. 1616 OF 2018 15 holding such a position would actually be rendering his services as a fulltime employee elsewhere. Had it been true, it would have certainly become headline news in this day and age where such kind of information does not remain hidden from the media for long. It would have also been a case of frequent absence of the petitioner from Pakistan at the expense of his official duties. On the basis of the contents of the contract of employment the status of the petitioner was though shown to be of a fulltime employee of the UAE Company but in actuality the petitioner is not shown to have gone to UAE to work for the company in such capacity. He retained his presence in Pakistan as a member of the federal cabinet. Even if the petitioner had rendered legal advice on phone, the respondent has failed to demonstrate that the petitioner or any of his family members own any shares in the foreign company which has financial dealings with the federation of Pakistan and their competing financial interests have undermined the impartiality of the petitioner by leaking any information to the said company or unduly benefited it in any manner that falls within the ambit of conflict of interest. It has also not been established that the petitioner by using his official position was instrumental in extracting some undue benefit from the Federal Government in favour of the UAE Company. 16. Black’s Law Dictionary defines conflict of interest as ‘a real or seeming incompatibility between ones private interest and one’s public or fiduciary duties’. To serve personal interest means to give ‘preferential treatment’ by using one’s official privileges or misusing confidential information to benefit someone else or one’s CIVIL PETITION NO. 1616 OF 2018 16 own interests. There are numerous examples that come to mind which can reflect the essence of a conflict of interest situations such as the prospect of personally gaining financial benefits subject to an approval of a project, introducing policy that are friendly to one’s private interests or lobbying to approve a friend’s tender or application just to help his interests. In the present case there is absolutely no allegation that the petitioner received some lucrative opportunity in exchange for conferring benefits or sharing confidential information thereby abusing his public office. The respondent has absolutely failed to point out any decision which the petitioner had taken in discharge of his official duties that was likely to result in any financial or other material benefits for himself or his family or friends or any decision he took that had influenced him in the performance of his official duties. Thus no case of conflict of interest is made out. 17. For whatever its worth, as the execution of the employment contract with the UAE Company is an undeniable reality, the petitioner was required to declare the salary settled thereunder. Failure to do so would have resulted in taking the risk of rejection of his nomination paper on account of concealment of one of his sources of income. The petitioner’s counsel submitted that as the salary received from the UAE Company for rendering legal advice on phone had already been spent by the petitioner, therefore while the monthly salary was disclosed in the tax return filed with the nomination papers, nothing was left in hand as savings from the salary to be declared as an asset hence the figure ‘0’ was written in the relevant column of the tax return after CIVIL PETITION NO. 1616 OF 2018 17 recoding the monthly salary settled under the foreign contract. Many people involved in politics make their living by taking employment with private persons or private companies. When they contest elections they are required under election laws to declare their sources of income, the assets they hold and the liabilities they owe. Where a person deriving income from salary has already spent it then all that is required to be disclosed is the source from which he derives his salary, not the entire quantum of salary that he received as it no more exists in his hand in the form of an asset. Hence, the occasion to declare salary as an asset arises only when at the stage of filing nomination papers it has either accrued but the employee at his own instance has not collected from the employer, who keeps it in trust for the employee or where the salary has been received but after spending some of it, part of it still exists as his savings in the form of cash-in-hand or cash-in-bank. So the salary that has not been collected at the option of the employee or the savings from the salary that exists in the hands of the employee at the time of contesting elections needs to be declared as an asset in the nomination paper. It seems that without looking at these aspects, respondent No.1 raised the issue of non-declaration of salary income by merely reading the contents of the written employment contract and the learned High Court went with such reading, though the learned High Court has clearly acknowledged in the impugned judgment that the salary under the foreign employment contract has been declared in the tax return that was filed with the nomination paper. The learned judge of the High Court however erroneously defined such disclosure to be ‘vague and obscure’ and went on to declare the petitioner dishonest. CIVIL PETITION NO. 1616 OF 2018 18 Petitioner’s declaration of foreign salary as one of his sources of income under the foreign employment contract exists on the record, so it can’t be said that it is case of non-declaration of a source of income. 18. One can speculate that the employment contract was intended to create a fake source of income in order to convert black money into white. In the present case, however, allegations such as embezzlement, bribery or misappropriation of public funds or property has not been attributed to the petitioner which only would have served as a basis to scrutinize the matter in that context as well. Even otherwise there was no need for the petitioner to show ‘0’ receipt against the foreign salary declared in his tax return filed with the nomination paper, as declaring substantial savings out of salary income under the foreign employment contract would have served the purpose of whitening any black money which the petitioner may have been holding. In the present case no savings from foreign salary have been shown to have existed in the hands of the petitioner when he filed his nomination paper. As already discussed, only where salary has been earned but not yet collected from the employer or where any part of it has not yet been spent and exists in the form of savings was required to be declared. In the present case, no part of salary earned but not yet collected from the employer or any part of unspent salary was demonstrated to have existed in order to make out a case of concealment. In the circumstances the explanation given by the petitioner’s counsel that no part of the salary settled under the foreign employment contract was in the hands of the petitioner at the time of filing of CIVIL PETITION NO. 1616 OF 2018 19 nomination paper cannot be brushed aside. In the case of Rai Hassan Nawaz supra, it has been held that there is a public interest behind the statutory prescription for obtaining the statements of assets and liabilities so that integrity and probity is maintained by the contesting candidates. It was further held that where an asset is not disclosed and where no plausible explanation is forthcoming only then an elected member is to be unseated. In the present case the respondent No.1 has failed to rebut the explanation of the petitioner and failed to point out that salary proceeds or any part of it, whether in cash or kind or in the form of receivables existed at the time of filing of the nomination papers which remained undeclared. Thus no case of concealment of an asset is made out. 19. Disqualification has also been sought on the ground that income tax on the foreign salary income under the employment contract with the UAE based company has not been paid by the petitioner. In this regard the learned High Court held that Section 102 of the Income Tax Ordinance, 2001 provides that any foreign salary received by a resident individual shall be exempt from tax only when the individual has paid income tax in the country where it was earned and nothing was placed on record to show compliance with this legal requirement. Keeping aside for a moment our doubts with regard to the real object behind executing the employment contract, we would proceed to examine the question of non-payment of income tax purely on the legal plain. Section 12 (2) (d) of RoPA required every contesting candidate to make a declaration that they or their spouses or any of their CIVIL PETITION NO. 1616 OF 2018 20 dependents or the business entities mainly owned by them are not in default in payment of any government dues or utility charges in excess of ten thousand rupees for over a period of six months at the time of filing the nomination papers. In our view, such default can only be established had it been shown that a bill or a recovery or demand notice or an assessment order was issued by an authority that is competent to recover government dues yet the same has remained unpaid. However, that is not the case in the present proceedings. Hence in absence of any such demand from the concerned government department, the court in the proceedings in the nature of quo warranto cannot take upon itself the obligation to make assessment of tax on its own which only the income tax department is competent to do under the law. In absence of a tax demand from the tax department, the learned High Court ought not to have assumed the role of determining petitioner’s tax liability after being quite conscious of the fact that it cannot assume such a role when it observed in the impugned judgment “We are not concerned with violations of the tax laws”. Hence no case for disqualification is made out on this ground as well. 20. Petitioner’s disqualification has also been sought on the ground that he had AED 5,000/- in his account bearing No.6201853775 maintained with National Bank of Abu Dhabi, UAE which he failed to disclose in his nomination paper filed at the time of contesting 2013 general elections. He explained the omission by stating that it happened due to oversight. This bank account was however disclosed in the statement of assets and CIVIL PETITION NO. 1616 OF 2018 21 liabilities filed in the year 2015 as required under Section 42A of RoPA. A complete bank statement of the said account is on the record which reflects that the petitioner opened his account on 17.04.2010 with a sum of AED 5,000/- and five years later closed it on 07.07.2015. In the interregnum, the bank had only been debiting bank charges periodically which brought down the original deposit amount from AED 5,000/- to AED 4,715/-. This balance amount was finally withdrawn from the account when it was closed. So right from the day the bank account was opened and till its closure, no business was transacted in the said account which substantiates the plea taken by the petitioner that non-disclosure was an innocent omission and not intended to conceal some wrongdoing. We are not oblivious of the fact that a bank account may reflect certain transactions of substantial value which have already taken place and scrutiny of such transactions may lead to disclosure of illegal financial dealings regardless of the meager amount lying deposited. However, that is not the case here as other than making a deposit of AED 5,000/- no transaction has taken place in the said account which throughout its life remained dormant. Hence the petitioner cannot be labeled dishonest for omitting to declare such a small amount under Article 62 (1) (f) of the Constitution. 21. In the present case neither a case of conflict of interest is made out nor has any wrongdoing associated with any asset belonging to the petitioner has been established in order to warrant interference in proceedings in the nature of quo warranto. CIVIL PETITION NO. 1616 OF 2018 22 22. Above are the reasons for our short order dated 01.06.2018 whereby we converted this petition into appeal and allowed it after reaching the conclusion that the decision of the leaned High Court in disqualifying the petitioner under Article 62 (1) (f) of the Constitution is not sustainable in law and thus no case for issuance of a writ in the nature of quo warranto was made out. JUDGE JUDGE JUDGE Islamabad, the 19th of October, 2018 Approved for Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 1638 OF 2014 (On appeal against the judgment dated 10.06.2014 passed by the Peshawar High Court, Peshawar in ST.R No. 105/2010) Pakistan State Oil Company Ltd.(PSO), through its Deputy General Manager, Legal Affairs, PSO House, Khyaban-e-Iqbal, Clifton, Karachi. … Petitioner VERSUS Appellant Tribunal Inland Revenue, Peshawar Bench, Peshawar, through its members and others. …Respondents For the Petitioner: Mr. Samad Mehmood, ASC Syed Rifaqat Hussain Shah, AOR For the FBR: Dr. Farhat Zafar, ASC Mr. Khiyal Muhammad, Deputy Director (Customs) For the NAB: Mr. Nasir Mehmood Mughal, Senior Special Prosecution Mr. Mumtaz Shoukat, A.D. FPSC Date of Hearing: 10.02.2017 JUDGMENT FAISAL ARAB, J.-The subject matter of the present proceedings is eighteen consignments of petroleum comprising of 596,000 Liters of PMG-8 that were meant for export to Afghanistan. Upon scrutiny of the records of PSO as well as of Customs Station, Torkham at Pak-Afghan border, the Director General, Intelligence & Investigation (Customs, Sales Tax and Central Excise), Islamabad, sometime in 2004 detected that these CIVIL PETITION NO. 1638 OF 2014 2 consignments that were loaded from the oil depot of Pakistan State Oil Company Limited (PSO) located in Karachi on twenty-one tankers between February to September, 2003, were never exported to Afghanistan but were clandestinely supplied in the local market. This fraud caused a loss of Rs.9.5 million to the government exchequer in the shape of the Central Exercise Duty, Sales Tax and Petroleum Development levy. These levies are not chargeable when the petroleum product is exported but chargeable only when they are meant for domestic consumption. 2. The conclusion with regard to evasion of levies was based on following disclosures:- (i) On thirteen ARs (Application for removal of Goods) stamps and signatures of the customs officials were affixed showing exports to Afghanistan from Customs Station, Torkham whereas the export register showed that the shipping bill numbers quoted on the said ARs pertain to some other consignments. (ii) The date of dispatch of the disputed consignments for Afghanistan from the warehouse of PSO reflected that the consignments were exported even before their dispatch date. For example, the consignment covered under AR 1245 dated 27.02.2003 was shown to have been exported via Customs Station Torkham on 25.02.2003 i.e. two days earlier. (iii) The consignments pertaining to four ARs meant for export to Afghanistan did not bear the certificate of exportation nor stamps and signatures of the customs officials. (iv) Shipping bills under which the said consignments were said to be exported to Afghanistan though requisitioned telephonically from Mr. A.H. Siddiqui, General Manager, New Business/Afghan Export, PSO House, Clifton, Karachi but the same were not provided on the pretext that the same were not available. CIVIL PETITION NO. 1638 OF 2014 3 3. The evasion of levies in the garb of export led to issuance of Show Cause Notice dated 07.12.2004 to the appellant and others on charges that were punishable under Sections 156(I), (9.i) (14), (77), (84) and (90) of the Custom Act, 1969 and Section 33 of the Sales Tax Act, 1990 read with the relevant provisions of the Central Excise Act, 1944, Petroleum Products (Development levy) Ordinance, 1961, the Imports and Exports (Control) Act, 1950 and Afghan Export Policy declared under SRO No.1379-I)/2002 dated 07.03.2002. 4. Threatened by the action stated in the Show Cause notice, the functionaries of PSO put forward an institutional defence that it was the mischief on the part of the owners of the tankers, to whom the petroleum was entrusted for transportation to Afghanistan, who indulged in the fraudulent act. The functionaries of PSO then scrambled to ensure that the evaded duties and charges are deposited in the treasury. The entire amount of evaded taxes and levies were promptly deposited into the government treasury said to have been recovered from the owners of the tankers. Upon such deposit, the functionaries of PSO sought withdrawal of the proceedings pending before the Additional Collector (Adjudication), Peshawar. However, the Additional Collector (Adjudication), Peshawar vide order dated 17.03.2005 imposed on PSO a penalty, five times of the evaded amount of Central Excise duty under Section 9(b) of the Central Excise Act, 1944, additional tax at the rate of one percent and penalty at the rate of 3% of the sales tax under Sections 33(2)(cc) & CIVIL PETITION NO. 1638 OF 2014 4 34 respectively of the Sales Tax Act, 1990. Being aggrieved by the decision of the Additional Collector, the petitioner challenged the order dated 17.03.2005 in appeal before the Appellate Tribunal Inland Revenue, Peshawar. The same was dismissed vide order dated 04.05.2010. The petitioner then filed Sales Tax Reference No. 105/2010 before the Peshawar High Court, Peshawar, which also met the same fate. Hence this petition. 5. In our view, the prompt deposit of the evaded levies after its disclosure is nothing but an attempt to prevent the responsible officers of Customs as well as of PSO, who might have acted as facilitators in the commission of the crime, from being subjected to criminal and disciplinary action. Not only this, the evaded levies may have been promptly returned with the intention to stall further investigation that might have led to involvement of other persons as well as disclosure of similar other acts of evasion. When crime of such a nature is detected then upon being established in appropriate proceedings not only it leads to recovery of the evaded taxes and levies but the perpetrators are to be visited with imprisonment, penalties and fines. Over and above this, it also triggers in-house disciplinary action against the concerned government or semi government functionaries, the facilitation of whom may have been instrumental in the commission of the crime. 6. In view of the material that had come on the record with regard to evaded taxes and levies in the manner discussed above, we find no justification to interfere with the impugned judgment. While holding that no case is made out for our CIVIL PETITION NO. 1638 OF 2014 5 interference in the conclusion as to imposition of fines and penalties, we feel that the burden of penalties and fine, which in view of the outcome of this decision would initially fall on PSO, should ultimately be borne by such functionaries of the Customs and PSO who are found to be instrumental in facilitating the evasion of levies. In order to take appropriate action against the persons responsible for letting the evasion take place, let the matter be inquired into by NAB so that the perpetrators of crime against whom criminal action was not initiated personally face the consequences under the provisions of the National Accountability Ordinance, 1999. We also direct the Chairman, PSO and Chairman, Federal Board of Revenue to order initiation of disciplinary proceedings against their respective officers who may have been instrumental in any manner in the evasion of levies that are subject matter of these proceedings. 7. This petition is dismissed in the above terms and leave is refused. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 10th of February, 2017 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Jawwad S. Khawaja Mr. Justice Sarmad Jalal Osmany Mr. Justice Mushir Alam CIVIL PETITION NO. 1646-L OF 2014 Gohar Nawaz Sindhu Petitioner Versus Mian Muhammad Nawaz Sharif & others Respondents Petitioner: In person On Court’s notice: Mr. Salman Aslam Butt, AGP Mr. Waqar Rana, Addl. AGP assisted by Mr. Dilnawaz Ahmed Cheema, Consultant to AGP Respondents: Not represented Date of hearing: 10.11.2014 O R D E R Jawwad S. Khawaja, J. This case raises questions of constitutional law that are of great significance to the continuity and health of our nation’s system of elections, governance and adherence to the will of the people as expressed by them in the body of the Constitution itself. 2. This petition arises out of Writ Petition No. 23456 of 2014 which was filed by the petitioner, Mr. Gohar Nawaz Sindhu. He is an Advocate and is also the Sr. Vice President of Insaaf Lawyers’ Forum which is the Lawyers Wing of Pakistan Tehreek-e-Insaaf (PTI). He has appeared and argued this petition in person. The respondents are the Prime Minister of Pakistan Mian Muhammad Nawaz Sharif, Interior Minister Ch. Nisar Ahmed and the Secretary Defence, Government of Pakistan. 3. The High Court dismissed the petitioner’s Writ Petition vide judgment dated 2.9.2014. The learned Single Bench did not touch upon the merits of the petition but dismissed it as being not maintainable. Reliance was placed by the learned single Bench on the case titled Hudabiya Paper Mills Ltd. Vs. National Accountability Bureau (PLD 2012 Lah. 515). It was held that the issue raised by the petitioner was a “political question” and was not CP 1646-L/2014 2 justiciable. It was also held that the petitioner “can agitate this matter before an appropriate political forum, if so advised.” 4. Feeling aggrieved the petitioner filed ICA No. 865/2014. This appeal was heard by a learned Division Bench and was dismissed through judgment dated 8.9.2014. Though this judgment has made reference to Articles 62(1)(f), 63(1)(g), 66 and 69 of the Constitution, it proceeds on the same grounds as the judgment of the learned Single Judge i.e. failure of the petitioner to satisfy the Court on the question of maintainability and on the question of his locus standi. On 16.10.2014 after hearing the petitioner at some length we had issued notice to the learned Attorney General under Order XXVIIA CPC. A concise statement has been filed by the learned Attorney General. 5. After hearing the petitioner and the learned Attorney General and having considered the concise statement filed by him pursuant to our order, we are prima facie of the view that the following constitutional questions arise in this case:- (i) Whether in view of the express stipulations in Articles 62(1)(f) and 63(1)(g) of the Constitution requiring declaration/conviction by a court, the High Court could have dismissed the Writ Petition on the ground that it raised a “political question” and was, therefore, not justiciable; (ii) If it is held that the High Court fell in error and that the Writ Petition was maintainable, what would be the effect of the constitutional requirement that declaration/conviction as aforesaid has to be by a court and for the purpose of such declaration/conviction whether the provisions of Article 10A of the Constitution requiring “fair trial” and “due process” are attracted; and if so, what do these terms entail; (iii) It may well be that the facts and circumstances emerging on record may prima facie, not justify the acceptance of the Writ Petition, but it is in our view still essential to lay down the law and parameters of the constitutional provisions and to outline on principle, what would be the minimum threshold for attracting the above referred provisions of the Constitution. In any event it is important to determine:- CP 1646-L/2014 3 (a) as to which Court will be competent to make such declaration or to pass an order convicting a member of Parliament; (b) What will be the procedure adopted by such Court for rendering such declaration/conviction; (c) What will be the standard of proof required for making such declaration or order of conviction; (d) As to who will have locus standi to seek such declaration/conviction; (iv) The constitutional provisions of eligibility for elected office requiring an elected persons to be “honest” and “ameen” have to be given meaning because these terms have to be interpreted as they constitute a substantive part of the Constitution; and it is the people of Pakistan who have (through the Constitution) mandated and are entitled to ensure that members of Parliament elected by them are inter alia, “honest” and “ameen” and thus fulfill the eligibility criteria and qualifications given in Articles 62 and 63 of the Constitution. (v) Whether Article 66 (privileges of members etc.) of the Constitution provides an absolute or a qualified privilege to members of Parliament for statements made on the floor of the two houses of Parliament and Provincial Assemblies and also whether the provisions of Articles 62 and 63 of the Constitution override the provisions of Article 66 ibid. (vi) What is the effect of the material changes which have been made in Articles 62 and 63 of the Constitution by virtue of the 18th amendment passed in April, 2010. 6. It is of utmost importance that the foregoing constitutional questions are adjudicated because the same challenges as to qualifications/disqualifications, eligibility of elected members of Parliament and also elections and bye-elections are a recurring phenomenon and for the same reason it is necessary that courts, returning officers and election tribunals etc. receive guidelines by way of precedent in terms of Article 189 of the Constitution; otherwise, without such guidance there is likelihood that there will be a lack of certainty and uniformity in the decisions rendered by various courts, returning officers CP 1646-L/2014 4 and election tribunals etc. bearing in mind that there are a total of 1070 constituencies and an average of 10 candidates will be contesting elections and will be submitting their nomination papers for scrutiny. 7. Since the aforesaid important constitutional questions have arisen and the same are likely to have far reaching consequences and we have also been informed that some of the questions noted above are already under consideration by another learned Bench of this Court, we may suggest that senior Advocates of the Bar (Mr. Hamid Khan, Mr. Raza Rabbani, and Mr. Khawaja Haris) assist the Court as amicus curiae. The Office is directed to place the file before Hon’ble the Chief Justice for further orders deemed appropriate by him including, if deemed fit by him, the constitution of a larger Bench. Judge Judge Judge Quetta, the 10th November, 2014 M Azhar Malik*/ NOT APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali, CJ. Mr. Justice Amir Hani Muslim Mr. Justice Umar Ata Bandial CIVIL PETITION NO. 1648-L OF 2010 (On appeal from the judgment/order dated 26.04.2010 of the Lahore High Court, Lahore in W.P. No. 14739 of 2003) Muhammad Rafique Bhatti & others … … Petitioners Versus The Cooperative Judge, Lahore High Court, Lahore & others … … Respondents. For the petitioners : Mr. Muhammad Munir Piracha, ASC. For respondent No.2 : Mr. Nadeem-ud-Din Malik, ASC. Mr. Khushi Muhammad Nazir, Manager (Properties). Date of hearing : 15.10.2015. JUDGMENT UMAR ATA BANDIAL, J. – The judgment dated 26.04.2010 rendered by a learned Division Bench of the Lahore High Court, Lahore is assailed in this petition. The impugned judgment affirmed the view taken by the learned Single Judge of the High Court, who in exercise of his jurisdiction as Cooperative Judge dismissed on 28.04.2003 the petitioners’ application filed against the order dated 28.04.2001 passed by the Chairman, Punjab Cooperative Board for Liquidation (“PCBL”). By this order the Chairman, PCBL cancelled the “No Objection Certificate (“NOC”)” dated 30.10.1997 issued by his predecessor for sale to the petitioners of land measuring 193 Kanals 12 CP.1648-L of 2010 2 Marlas situated in village Maraka, Tehsil & District Lahore belonging to National Industrial Cooperative Finance Corporation (“NICFC”) in exchange for cash deposit receipts (“CDRs”) issued by the NICFC and National Industrial Cooperative Credit Corporation (“NICCC”), both being defunct undesirable cooperative corporations (“CFCs”). 2. Learned counsel for the petitioners submits that the concurrent findings given by the High Court and the Chairman, PCBL are barred by locus poenitentiae. The said transaction of sale in favour of the petitioners was concluded under two agreements to sell executed on 28.10.1991 and 05.11.1991 by Ch. Abdul Majeed, Chairman of the both NICFC and NICCC. Out of total sale consideration of Rs.25.268 million, an amount of Rs.25.093 million already stood adjusted against CDRs for funds held by the petitioners before this Court in the accounts of the two defunct CFCs, with the balance amount of Rs.74,229/- being payable in cash on execution of the sale deed. On 30.10.1997 the Chairman, PCBL gave his NOC to the sale in favour of the petitioners and on 26.06.1999 he gave permission to execute sale deed in their favour. The petitioners state that the sale consideration under the agreements to sell exceeds the value for the land transacted and the cancellation of NOC dated 30.10.1997 by the Chairman, PCBL on 28.04.2001, as affirmed by the High Court, violates the vested rights of the petitioners. 3. We have heard the learned counsel for the parties and have carefully scanned the record of the case. The following features in this case may be noted before discussing the plea taken by the learned CP.1648-L of 2010 3 counsel for the petitioners. In the early 1990s, the Province of Punjab was engulfed in a financial scandal involving a number of CFCs, which were engaged in unlawful deposit taking, lending and investment of public money without obtaining licenses for such activities from the State Bank of Pakistan. When billions of rupees of public money got jeopardized for one reason or the other, the Provincial Legislature passed legislation, namely, the Punjab Undesirable Cooperatives Societies (Dissolution) Act, 1993 (“PUCS Act, 1993”). The PUCS Act, 1993 was preceded by Punjab Undesirable Cooperative Societies (Dissolution) Ordinance XX of 1992 and Cooperative Societies (Amendment) Ordinance XII of 1992 issued by the Governor of the Province and other executive actions including attachment order passed by the Deputy Registrar, Cooperative Societies on 26.08.1991 in exercise of powers under Section 55 of the Cooperative Societies Act, 1925. The said events merely set out the context in which the disputed transaction of sale in the present case was concluded pursuant to agreements to sell dated 28.10.1991 and 05.11.1991. It is a matter of record that whereas the land under sale belongs to NICFC, its price is being paid, inter alia, by adjustment of CDRs issued by NICCC that are held by some of the petitioners. No resolution of the Board of Directors or the General Body of the NICFC was passed to authorize the sale of its land, fix the sale price thereof or to authorize adjustment of its value against CDRs issued by NICFC or another CFC. The agreement to sell is executed by Mr. Abdul Majeed without delegation of authority by the Board of Directors CP.1648-L of 2010 4 to show that the said Chairman has authority under the charter of the said CFCs to unilaterally or single handedly sell the immovable property of the NICFC. Consequently, the impugned judgments and the impugned order have considered the underlying agreements to sell to be collusive. This is concluded also for the reason that at least 23 unconnected persons holding CDRs in the two CFCs have, without being members of a family or a legal entity or having any other mutual link, combined to purchase immovable property from NICFC. This is done without even fixing their individual shares in the property agreed to be purchased, indicating the presence of benami interests. The enterprise undertaken by the petitioners ostensibly seeks pre-emptive recovery of their blocked funds in the two defunct CFCs by the acquisition of an asset having readily realizable value. By this means, they purport to secure priority and advantage over other similarly placed depositors/creditors of the two defunct CFCs. 4. The provisions of the PUCS Act, 1993 and its preceding legislation appoint PCBL as liquidator of defunct CFCs. The liquidation of these CFCs is ordained by the said law on account of their illegal activities, heavy indebtedness to the public and consequent insolvency. It is a settled principle of law that a liquidator/receiver of an insolvent entity is vested with the power to avoid voluntary transfers made by the insolvent. Likewise, a liquidator/receiver has the power to avoid transactions that may be deemed to constitute fraudulent preferences. These powers are codified, inter alia, in Section 53 and 54 of the Provincial Insolvency Act, 1920. The principles of law CP.1648-L of 2010 5 enshrined in the said provisions have also been incorporated in the Companies Ordinance, 1984. In relation to the defunct CFCs, similar powers have been vested in the PCBL under the provisions of Section 7(b), (e), (h) and (p) of the PUCS Act, 1993 that are reproduced below: “7. Powers of a Co-operatives Board. A Cooperative Board when appointed as a Liquidator under this Act shall have all the powers exercisable by a Liquidator under the Co-operative Societies Act, 1925 and in addition to that shall have the power to-- (a) … (b) unearth and proceed against any concealed or hidden property of an Undesirable Co- operative Society, whether in the name of any Director, Officer, agent or any of the members of their families or in the name of any other person, body, company or firm acquired or purchased by using or diverting the funds of such a society; … (e) cancel all agreements entered into by an Undesirable Co-operative Society or its previous managements or Directors, officers or agents which in the opinion of the Co- operatives Board, are mala fide and against the interest of such a society or the members thereof; … (h) determine the validity of adjustment of the CP.1648-L of 2010 6 to any lawful scheme notified by the PCBL or the Provincial Government under the PUCS Act, 1993 for settlement or adjustment of claims by depositors. Otherwise the settled principle of law for distribution of assets among the same class of creditors of an insolvent is done ‘pro rata’ through proportionate abatement of claims as envisaged in Section 61 of the Provincial Insolvency Act, 1920. By this method, all the creditors of equal standing, in the present case, the CDR holders of a defunct CFC are put to equal risk/loss in case of non- realization of their respective debts in entirety. 5. The foregoing approach is noticeable in the impugned order dated 28.04.2001 passed by the Chairman, PCBL, which mentions the provisions of clauses (b) and (e) of Section 7 of the PUCS Act, 1993. Quite apart from the said valid grounds adopted by the impugned decisions, to our minds, the general powers of a liquidator/receiver, namely, to avoid voluntary transfers and make pro rata distribution meant to treat similarly placed creditors of an insolvent entity equally are encapsulated in the provisions of Section 7 of the PUCS Act, 1993. Accordingly, the preference given to the petitioners over other similarly placed creditors of the two defunct CFCs defeats any claim of locus poenitentiae posited by the petitioners. The said reason therefore suffices to cancel the NOC issued in favour of the petitioners. Consequently, the impugned judgments of the High Court and the impugned order of the Chairman, PCBL are lawful and valid. CP.1648-L of 2010 7 For the foregoing reasons, we do not find any merit in this petition, which is accordingly dismissed alongwith all ancillary Misc. Applications. Leave to appeal is refused. CJ. J. J. Islamabad, 15.10.2015. Irshad Hussain /* APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Ejaz Afzal Khan Mr. Justice Qazi Faez Isa CIVIL PETITION NO. 1662 OF 2016. (On appeal against the judgment dt. 15.03.2016 passed by the Islamabad High Court, Islamabad in C. R. No. 413 of 2015). Haji Zarwar Khan through L.Rs. …Petitioner(s) Versus Haji Rehman Bangash and others. …Respondent(s) For the petitioner(s): Mian Shafqat Jan, ASC. Mr. Mehmood A. Sh., AOR (Absent) For the respondent(s): N.R. Date of hearing: 17.06.2016. O R D E R EJAZ AFZAL KHAN, J.- This petition for leave to appeal has arisen out of the judgment dated 15.03.2016 of the Islamabad High Court, Islamabad whereby it allowed the petition filed by the respondents and set aside the order dated 8.10.2015 of the Civil Judge 1st Class West, Islamabad. 2. Learned ASC appearing on behalf of the petitioner contended that the judgment rendered in the case of Muhammad Anwar and others Vs. Mst. Ilyas Begum and others (PLD 2013 SC 255) is not attracted to the case of the petitioners as they never moved an application in terms of Rule 2 of Order XVI CPC. The case of the petitioners, the learned ASC added, is clearly and squarely covered by Rule 7 of Order XVI and Rule 4 of Order XVIII, CPC as they sought the persons present in the Court to give evidence. He next contended that if the persons present in the Court are not allowed to CIVIL PETITION NO. 1662 OF 2016 2 give evidence except in accordance with Rule 1 of Order XVI CPC, Rule 7 shall become redundant. He next contended that the well recognized principle of harmonious interpretation requires that all the provisions of the Act be so construed that each of them has a meaning and none of them becomes redundant. 3. We have gone through the record carefully and considered the submissions of learned ASC for the petitioner. 4. Before we appreciate the arguments addressed at the bar by the learned ASC for the petitioner it is worthwhile to refer to Rule 7 of Order XVI which reads as under:- “16(7). Power to require persons present in Court to give evidence or produce document. Any person present in Court may be required by the court to give evidence or to produce any document then and there in his possession or power.” The rule quoted above provides that any person present in Court may be required by the Court to give evidence or to produce documents then and there in his possession or power. This provision does not apply, where the persons present in Court are required by a party to give evidence. Therefore, we don’t think this provision in any way would help the petitioner. Next comes Rule 4 of Order XVIII. Before we appreciate its implication it is also worthwhile to refer thereto which reads as under:- “18(4). Witnesses to be examined in open Court. The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge.” The above quoted rule deals with the mode and manner of recording evidence. It provides that the evidence of the witnesses in attendance shall be taken orally in open Court in the presence and CIVIL PETITION NO. 1662 OF 2016 3 under the personal direction and superintendent of the Judge. It by no stretch of imagination provides for examination of witnesses who are not mentioned in the list of witnesses. When seen in this context the rule does not advance the case sought to be canvassed at the bar by the learned ASC for the petitioner nor does it appear to be unmeaning or redundant. 5. Having thus examined, the view taken by the High Court appears to be correct and thus merits no interference, notwithstanding the learned Single Judge appreciated the controversy urged before him not by referring to the provisions cited above, but by referring to the judgment rendered in the case of Muhammad Anwar and others Vs. Mst. Ilyas Begum and others (supra). This petition is, therefore, dismissed and the leave asked for is refused. However, if the evidence of the witness sought to be examined is necessary for the just decision of the case, the petitioners may, if so advised, apply before the Trial Court under Rule 2 of Order XVI CPC. Judge Judge ISLAMABAD 17.06.2016 M. Azhar Malik ‘Approved For Reporting’

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITION NO.1665 OF 2020 (Against the judgment dated 27.02.2020 of the Islamabad High Court, Islamabad passed in Writ Petition No.3950 of 2019) Rashid Hussain …Petitioner(s) VERSUS Additional District Judge, Islamabad (East) and others …Respondent(s) For the Petitioner(s): Agha Muhammad Ali Khan, ASC a/w Petitioner in person For the Respondent(s): Syed Nayab Hassan Gardezi, ASC a/w Respondents No.2 to 5 in person Date of Hearing: 02.11.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks leave to appeal against the judgment dated 27.02.2020 passed by the Islamabad High Court, Islamabad whereby Writ Petition No.3950/2019 filed by him was dismissed. 2. The brief facts of the case are that the petitioner is working abroad in Saudi Arabia as a Cab Driver and as such the instant petition was filed through his father on the basis of the power of attorney executed by him. The petitioner got married with one Mst. Kausar Naseem (since dead) and during their wedlock respondents No.3 to 5 were born. It is claimed by the petitioner that he was enjoying happy matrimonial life but unfortunately on 06.11.2015 his wife sustained burns in an accident and she was admitted in the hospital. On 19.08.2016 when the wife of the petitioner was still in the hospital, respondent No.2 took away the minor children of the petitioner and as such they are in the custody of respondent No.2 till filing of the instant petition. The tragic episode CIVIL PETITION NO.1665 OF 2020 -: 2 :- of the matter is that wife of the petitioner passed away on 03.09.2016. The petitioner claimed that he made several attempts to get back the children but the efforts made by him proved futile. Hence the petitioner had no other option except to file petition under Section 25 of the Guardian and Wards Act, 1890 claiming custody of the minor children from the maternal grandfather on the basis of preferential right. The Family Court after recording of evidence accepted the petition vide judgment dated 03.09.2019 and declared that under Section 19 of the said Act, the father has preferential right to custody of minor children, however, the maternal grandparents were allowed to have meetings with the minors and in this regard a visitation schedule was chalked out. The judgment of the Family Court was assailed through appeal under Section 47 of the Guardian and Wards Act, 1890, before the Appellate Court, which was allowed vide judgment dated 15.10.2019 by setting aside the judgment of the Family Court dated 03.09.2019 whereas the visitation schedule was kept intact. The petitioner being dissatisfied with the judgment of the Appellate Court approached the High Court in its constitutional jurisdiction but it also met the same fate vide judgment dated 27.02.2020. The crux of the judgment passed by the High Court was that the petitioner resides and works in Saudi Arabia, whereas the wife of the petitioner had died on account of incident of burning and the allegation was made against in-laws, though it ended into their acquittal but still it is not appropriate to handover the custody to the petitioner or his parents which may impair personality flaws with minors. Further it was observed by the High Court that during the course of proceedings the parents of the petitioner never showed any inclination to take the responsibility of the minor children whereas the sole criterion to decide the petition under Section 17 read with Section 25 of the Guardian and Wards Act, 1890 is meant for “welfare of the minor”, which is sine qua non of proceedings before the court of competent jurisdiction. 3. Learned counsel for the petitioner tried to persuade us on the ground that the petitioner being the natural guardian has preferential right to enjoy the custody of the minors and in the presence of the petitioner the custody of the minor children cannot be handed over to maternal grandfather. Contends that the petitioner CIVIL PETITION NO.1665 OF 2020 -: 3 :- was residing abroad but now he has placed an affidavit on the record to take care of the minor children and that he would relinquish his stay in Saudi Arabia and will reside with the minor children in Pakistan. Further contends that the Family Court has passed the judgment in favour of the petitioner, however, the Appellate Court as well as the High Court had given contrary findings resulting into handing over of custody of the minor children to maternal grandfather against the law. Lastly, it has been contended that the petitioner has sound financial antecedents and as such he can bear the expenses of the minor children for their brought up. Thus prays for acceptance of the instant petition. 4. On the other hand, the learned counsel appearing on behalf of the maternal grandfather has vehemently opposed the contentions raised by the learned counsel for the petitioner. The crux of the arguments advanced by the learned counsel for the respondents is that in ordinary circumstances there is no denial to this fact that the petitioner has the preferential right to retain the custody of the minor children but the purpose of the legislature qua Guardian and Wards Act is “welfare of the minor”. He has referred the statement of the petitioner before the Court which was read before us in detail. Lastly, contended that the preferential right of handing over of the custody of the minors to the father is not absolute in nature especially when he has re-married and there is a daughter born out of the wedlock. At the end it is argued that this Court has ample powers to take a contrary view in the spirit of law. 5. We have heard the learned counsel for the parties and gone through the record. The framers of the law relating to Guardians and Wards Act, 1890 legislated it as a special enactment with an intent to secure the interest and welfare of the minors living within the jurisdiction while highlighting the degree of preference to establish guardianship. The sole criterion which depicts the intent of the legislature is nothing except welfare of the minors as grundnorm of the enactment. As a general principle the degree of preference is confined to relationship depending upon the order of preference due to closeness of blood relationship and other aspects which are essential in upbringing of the minors within four corners of law. Any deviation from the general principle, where the blood relationship CIVIL PETITION NO.1665 OF 2020 -: 4 :- has to be departed, there should be very strong and compelling reasons to have a contrary view which includes upbringing, education, healthcare, congenial domestic atmosphere, physical and psychological advantages, sect, religion, character and capacity of the claimant to whom if it is assigned to take care of the minors. In short words, while ignoring/bypassing the general principle there must be very strong and exceptional circumstances which could be brought forth with reference to the intent of the legislature regarding the sole purpose of “welfare of minor”. As in the instant case, the ordinary order of preference is under question, keeping in view the facts and circumstances wherein the petitioner being the real father of all the three minors, namely, Muhammad Haseeb Ullah, Iraj Noor and Muhammad Shahmir, all aged about 06 to 09 years, claiming guardianship on the basis of the preferential right, a detailed scrutiny of the aforesaid facts and circumstances are to be adjudged in the spirit of the law relating to guardianship. The background of the instant petition is that the petitioner entered into wedlock with the deceased mother of the minors. He was a cab driver in Saudi Arabia and all the three minor children were born out of the wedlock. On 06.11.2015, the wife of the petitioner was burnt; she remained hospitalized in a critical condition and subsequently died of the said injuries. In this regard, a case bearing FIR No.171 dated 24.6.2017 under Section 302/34 PPC was registered at Police Station Sihala, Islamabad against the parents of the petitioner with an allegation that petitioner’s wife was intentionally burnt to death by the parents of the petitioner. The petitioner alleges that his wife was still in the hospital when his minor children were removed from the lawful custody and taken over by the maternal grandfather. The petitioner has not lodged any report in this regard to police though it is a criminal act, rather he preferred to file a petition under the Guardians and Wards Act, 1890. During the course of the proceedings before this Court, learned counsel for the respondents read before us the statement of the petitioner, Rashid Hussain (PW- 1) recorded before the Family Court. The relevant portion of which reads as under:- �”  ن�� � �� �از � ل� ر� �� � ۔ہ� � �� ۔ں� �� ىڑ�  �آ �او � � � ن�� � � ا� �اد ى�د � � � �رد � ۔ں�………… نآ� �� ى� ى�  ا� � � ى� ى� �و � ۔� �� � � ہزور و ز� روا � �ر ��� � � �د روا � CIVIL PETITION NO.1665 OF 2020 -: 5 :- � � � ر�ا � ے�د ۔� � د�� � ن�� �و سُا � � � د� � � ہو �   � � ۔� � ب� ىد� �  �و سُا � � � � � ل� � ى� ى� �  ۔�  ۔� � �� � �� �ا � � � د� زا ۔� ا� �اد � ل� � � � ے� � � � �ر ھ� � س� � � � � � م� � � �ا ۔� � �� � �ا � �� �   � � ل�2  � � ل� ۔� ل� ت� ےڑ� � ت� �� � �2  �ا� �ر� � 2013 -07-17  � � ل� روا �3  �ا� �ر� �2015 -02-01  � � ۔� � �� ہو � � � � � روا � � �� � �ا � � � � � ۔� �� � س  � � ل�2  ل�2013  � � ل�  �1  ل� ن�� � � ۔� � �� �  � �01  روا ر�� � ا� � � � � � ۔�د � ہ�و �� �� � � � � �� � �او �ا � � � �رد � ۔� راد � � ،� � ہ�و �� � ب� ىد� � � � � �� �� �ار ہا� � ب� ىد� � ى� �ا �“……… A bare perusal of the statement of the petitioner (PW-1) clearly reflects that the petitioner had not discharged his duties as father in any manner towards the minor children or his deceased wife. It appears that he was most reluctant to take care of his wife or minor children because they were under the patronage of maternal grandfather and he thought it an opportunity just to skip moral, legal or religious duty bestowed towards him. The provisions of Section 17 of the Guardians and Wards Act, 1890 expressly reflect consideration by the court for appointing guardian. It has been clearly mentioned that welfare of the minor is of paramount consideration with reference to so many other aspects narrated above. To evaluate the contents of the provisions of Section 17, it seems advantageous to reproduce the relevant provisions which read as under:- “17. Matters to be considered by the Court in appointing guardian.- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the CIVIL PETITION NO.1665 OF 2020 -: 6 :- proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.” The bare language of sub-section (2) of Section 17 reveals that for considering the welfare of the minor the Court has to keep in mind age, sex, and religion of the minor and the character and capacity of the proposed guardian and his nearness of kin to the minor. At the same time, the Court has to look at the wishes of a deceased parent, if any, and any existing or previous relations of the proposed guardian with the minor or his property. Sub-section (3) of Section 17 postulates that if the minor is old enough to form an intelligent preference, the Court may consider that preference. In the judgment reported as Khalid Mehmood Vs. Additional District Judge, Islamabad and 2 others (2011 CLC 889), it was held “In appointing the guardian of the minor paramount consideration for the court should be welfare of the minor. Court must see as to who was the most likely to contribute to the well being of the minor and who would be in better position to look after and take care of the minor”. Similarly, in the judgment reported as Mst. Rasheedan Bibi Vs. Additional District Judge and 2 others (2012 CLC 784), it was held “Mere entitlement of father as natural guardian of minors would not be sufficient to decide such question. Prime consideration while deciding custody of minors would be their welfare keeping in view character and capacity of their proposed guardian”. Today, the minor children were present in the Court. They were brought before the Court under the orders and they were very well dressed up showing mature manners and they plainly refused to accompany their own father, rather they categorically stated to reside with the maternal grandparents. It is not a matter of surprise that their body language clearly demonstrated a sign of hatred towards him. It only happened because the father of the minor children has not performed his legal, moral and religious obligation in the manner as it is provided in an Islamic society. Though there is no denial of this fact that the petitioner has remarried and there is a daughter born out of the wedlock but this aspect cannot be considered as a valid ground to defeat the preferential right of the CIVIL PETITION NO.1665 OF 2020 -: 7 :- father, rather it can have only persuasive value with respect to other aspects which compel deviation, if any, as per the dictates of justice and “welfare of the minor”. Further, Articles 2 and 2A of the Constitution of the Islamic Republic of Pakistan, 1973 clearly envisage that Islamic social order has to be observed while leading life within the four corners of the law. In an Islamic culture, the father has been bestowed with so many responsibilities towards his children. Even the mother of the children can claim compensation of breast feeding from her husband which is well within the tenants of Islamic fiqah. Where this responsibility has been ignored, how a father while forgetting his obligations towards minor children and that too at a belated stage, can claim the guardianship on the basis of bald claims. As an abundance of caution, we have asked the maternal grandfather about his worth to which he stated that he is the owner of 19 acres of agricultural land which is sufficient to bear the expenses of the minor children and they are already enjoying reasonable living status in the custody of their maternal grandfather. Another aspect of this case is that the children are well aware of the fact that their mother died due to unnatural consequences which must be in the back of the mind of the children that it was their father who was involved in that episode. At this stage any adventure by this Court to dislodge the custody and handover the same to the father would be instrumental into impairment of the mental faculty of the minor children which could imprint negative impact on their personality in future and that would squarely be against the dictates of “welfare of the minor” which is an attire of Guardian and Wards Act, 1890. 6. In view of the facts and circumstances narrated above, this petition is dismissed. However, the visitation schedule made by the Family Court for the grandparents shall be considered to be made for the petitioner and the same shall be followed. JUDGE JUDGE Islamabad, the 2nd of November, 2021 Approved for reporting Waqas Naseer/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Nasir-ul-Mulk, HCJ Mr. Justice Gulzar Ahmed Mr. Justice Mushir Alam Civil Petitions No.1700 & 1701 of 2011 Against judgment dated 28.09.2011 of Lahore High Court, Lahore, passed in Intra Court Appeals No.154 & 155 of 2009. American International School System Petitioner (in both cases) VERSUS Mian Muhammad Ramzan & others Respondents (in CP#1700/11) Sakina Bibi & others Respondents (in CP#1701/11) For the Petitioner(s): Mr. Rashid A Rizvi, Sr.ASC For the Respondent(s): Ch. Amir Hussain, Sr.ASC #1-3 in CP#1700 & #1-2 in CP#1701/11 Rana Shamshad Khan, AAG, Pb. #4-8 in CP#1700 & #3-7 in CP#1701/11 Date of Hearing: 09.12.2014 JUDGMENT Mushir Alam, J-. Through this single judgment, we propose to decide Civil Petitions No.1700 & 1701 of 2011, filed by the petitioner-American International School System, arising out of a common judgment of Lahore High Court, Lahore, dated 28.09.2011, rendered in Intra Court Appeals No.154 and 155 of 2009. 2. Facts, in brief, appear to be that each set of private respondents’ refugee claimants asserted their rights in respect of subject property in their respective possession (total land measuring 59 Kanals 2 marlas, situated at Harbanspura, Tehsil Lahore Cantt, District Lahore) to claim subject land against their purported rights as occupancy tenant and transferee from Settlement Department under the residual property scheme through legal proceedings, which culminated in the judgment cited as Muhammad Ramzan v. Member (Rev.)CSS (1997 SCMR 1635). It was held that after the issuance of “Scheme for Management and Disposal of Available Civil Petitions No.1700 & 1701 of 2011 2 Urban Properties, 1977” dated 16.5.1977 issued under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 as prepared by the Government of Punjab (hereinafter referred to as ‘Scheme, 1977’) and consequent upon issuance of Notification No.1697-73/1567-R(L), dated 16.5.1973, issued by the Chief Settlement Commissioner, subject agricultural land was declared as ‘Building Site’ and could not be allotted or transferred against unsatisfied claims. They were, however, given liberty to assert their rights in accordance with law, if so available. 3. The private set of respondents in each of the Petition herein, however, retained their possession and never availed the benefit of Scheme, 1977. It also appears that subject property on the direction of the then Chief Minister was allotted to the Petitioner- School through allotment order dated 10.05.2007 made by the Member (Colonies), Board of Revenue, Punjab, Lahore. Consequently, each set of private Respondents herein were forcefully dispossessed by the Executive District Officer, Government of the Punjab, Lahore, from the subject property and possession was handed over to the Petitioner-School. 4. Both sets of the private respondents challenged their respective dispossessions and allotment of the subject land to the petitioner-School through two different constitution petitions (Writ Petitions No.5939 & 5940 of 2007) claiming their right, title and interest in the land as against the petitioner-School. Both the Writ Petitions were heard together and dismissed through a common judgment dated 19.02.2009, whereby a learned Single Judge in Chambers in the Lahore High Court held that the petitioners therein (private respondents herein) have no locus standi to file the petitions and at the same time, the allotment made in favour of the petitioner-School was found to be in order. It was, however, observed that the price at which the property was allotted to the Petitioner-School was on the lower side and they were directed to pay the amount of the subject property as per evaluation to be carried out by the Government of Punjab. The judgment of the learned Single Judge was challenged by each set of the private respondents herein, through Intra Court Appeals No.154 and 155 of 2009. A learned Division Bench of the High Court vide judgment Civil Petitions No.1700 & 1701 of 2011 3 dated 19.09.2009 maintained the finding against the private respondents herein, for the reasons as stated therein, that they have no locus standi to claim subject property. However, allotment order dated 10.05.2007 whereby the subject land was allotted to the petitioner-School by way of private treaty at a throwaway price of Rs.600,000/- per kanals was held to be illegal and without lawful authority; it was further held that Colonies Department, Government of the Punjab had no jurisdiction to deal with subject Evacuee Property, and authority vests with Member (Residual Properties), Board of Revenue, Punjab as per clause 30 of Scheme for the Management & Disposal of Available Urban Properties, 1977. 5. It appears that the Judgment dated 28.9.2011 rendered in Inter Court Appeals was challenged by the private set of Respondents herein, through Civil Petitions No.27 & 28 of 2012 before this Court, which however, were dismissed being barred by time. Same judgment dated 28.09.2011 has been challenged by the petitioner-School through Civil Petitions No.1700 & 1701 of 2011 which, are being decided through this common judgment. 6. Mr. Rashid A. Rizvi, learned Sr.ASC for the petitioner- School has contended that there were two contenders of the subject property; one is private sets of respondents in each of the two petitions and other is the petitioner-School. It was urged that since the private respondents have lost their claim up to this Court, and their Petitions for Leave to Appeal have since been dismissed, the subject property in terms of the allotment order dated 10.05.2007, referred to in the narrative above, was validly allotted by the Provincial Government and the petitioner-School had acquired the same through a private treaty and a sale deed to such an effect was also executed in favour of the petitioner-School in terms of the decision of the Provincial Cabinet dated 05.01.2007 authorizing sale of 57 kanals of State land in their favour at the rate of Rs.600,000/- per Kanal. It was further urged that pursuant to another decision of the District Price Assessment Committee another piece of land measuring 40 Kanals was approved in their favour on 14.04.2007. 7. Mr. Rizvi, learned ASC for the Petitioner-School, has further contended that since there is no contest, no exception could be taken to the disposal of the land by the Provincial Government by Civil Petitions No.1700 & 1701 of 2011 4 way of a private treaty with the petitioner-School and a number of other institutions were also granted such land in the similar manner. When attention of the learned counsel was drawn to order of this Court passed on 26.02.2013, which clinches to the main issue whereby he was required to satisfy the Court as to the proprietary and legality of the transfer made in favour of the petitioner-School and also as to the Authority of the Member (Colonies) Board of Revenue, Punjab. The said order reads as under:- “After hearing learned counsel for the parties, we would like to issue notice to the Advocate General (Punjab) to assist us generally in the matter and particularly in interpretation of Section 11 & 12 read with Section 30 of the Scheme for the Management and Disposal of Available Urban Properties situated in the Province of the Punjab dated 13.01.1977, as to whether the power of the Member Board of Revenue (Residual Properties) under Section 30 to transfer public lands is unfettered and whether such properties can be transferred only through public auction under Sections 10 & 11 of the Scheme.” 8. Mr. Rizvi, learned ASC for the Petitioner-School in response and in support of his assertion placed heavy reliance on paragraph 30 as amended by Notification dated 18.10.1977 read with paragraph 12 of Scheme, 1977 as framed under Section 3(1) read with Section 1 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 [hereinafter referred to as ‘Act, 1975’]. It was contended that in terms of the powers vested in the Government, subject property was transferred to the petitioner-School in the ‘public interest’ and no exception to the exercise of such authority by the Government could be taken. It was urged that as per Para 12 read with para 30 of the Scheme 1977, the Government of Punjab, had the authority to sell the subject property through private negotiation, which powers were rightly exercised in the public interest as the Petitioner-School has been imparting education and the Government of Punjab, lays much emphasis on education. 9. Learned Assistant Advocate General, Punjab has contended that the petitioner-School was conveyed 84 Kanals of Evacuee Property on political considerations at a throw away price of Rs.600,000 per Kanal. It is stated that the subject Evacuee Property is situated within the heart of the Municipal Limits of Lahore, and the Settlement Commissioner, Punjab, through Notification dated 16.5.1973 issued under Section 13 of the Displaced Person (land Civil Petitions No.1700 & 1701 of 2011 5 Settlement Act, 1958 declared all the agricultural lands within the Municipal Limits of Lahore as ‘Building Site’. It was urged that all the Settlement Laws were repealed by virtue of Displaced Persons Laws (Repeal) Act, 1975, with effect from 1.7.1974. All the Evacuee Properties were transferred to the Provincial Government for their disposal in accordance with the Scheme, 1977 prepared under Section 3 of the Act of 1975. 10. It was next urged that subject land was not the ‘State Land’ but the ‘residual evacuee property’ under the Act of 1975, and could be disposed off strictly in accordance with the Scheme, 1977 framed for the purpose under Section 3 of the Act, 1975. It was further urged that such Scheme, 1977 for the disposal of residual evacuee property was prepared in the year 1997, which has received approval in the case reported as Muhammad Ramzan (supra) and so also in the case of Member, Board of Revenue v. Rafaqat Ali (1998 SCMR 2596). It was, therefore, urged that the land could not have been dished out to the petitioner-School by the Member (Colonies), Board of Revenue, Punjab at a throw away price. According to him, per Scheme 1977, the competent authority is ‘Member, Board of Revenue (Residual Properties)’ appointed by the Government of Punjab. It was urged that the Petitioner-School did not qualify the criteria as laid down under the Scheme, 1977, therefore, was and is not entitled to be doled out State property for a song. It was contended that subject property is a valuable piece of land falling within the Municipal Limits of Lahore and under the Scheme, 1977 it could only be sold out through an open auction under Para 11, thereof. 11. We have heard the learned counsel for the petitioner- School as well as the learned Assistant Advocate General, Punjab and perused the record. In order to appreciate the contentions of respective parties it would be beneficial to glance at Paragraphs 11, 12 and 30 as amended of the Scheme, 1977, which read as follows:- 11. Sale by auction.-- A house, shop or a building site having permanent construction for the transfer of which no application is received and every property that is cancelled from the name of a defaulter and a vacant building site shall be deposed of by unrestricted public auction. Civil Petitions No.1700 & 1701 of 2011 6 12. Disposal of houses, shops or building sites by negotiation.—If a house, a shop or a building site having been put to auction twice fetches no bid or fetches a bid short of the reserve price, it shall be disposed of by negotiation by inviting sealed tenders which shall be opened by the Deputy Administrator (Residual Properties) of the area concerned in the presence of the tenderers. If the highest offer made for such a house, a shop or a building site is equal to or exceeds 75% of its reserve price, it may be accepted by the Deputy Administrator (Residual Properties) and where the highest offer made is below 75% of the reserve price but not less than 50%, it may be accepted by the Administrator (Residual Properties), of the area or where the highest offer made is below 50%, it may be accepted by the Member, Board of Revenue (Residual Properties) (underlined to add emphasis)”. “Un-amended para 30. 30. Powers to transfer properties in public interest. The Member, Board of Revenue (Residual Properties), may transfer, in public interest any available property in such manner and on such price as he may deem proper. 13. Paragraph 30 of the Scheme 1977 was amended through Notification dated 18.10.1977, whereby the words “Public Interest” in Clause (1) were deleted and sub paragraph (2) was added; after the amendment it reads as follows; 30 .Powers to transfer properties.(1) The Member, Board of Revenue (Residual Properties), may transfer, in public interest, any available property in such manner and on such price as he may deem proper. s (2) “Where a property is partly available property and partly owned by any person, the Member of Revenue (Residual Properties) may transfer the available property on application to such person on payment of transfer price.” 14. As noted in the narrative above, the status of the subject property was already determined by this Court in the case of Muhammad Ramzan (ibid), as ‘residual evacuee property’ and a “building site”. Building Site, Government, and Member Board of Revenue (Residual Properties) are defined in the Chapter I, definition Paragraph 1, of the Scheme, 1977 as follows:- (d) “Building Site” means any plot of land which is not with in a well-defined compound of a permanent building and includes:- (i) A site on which the permanent construction, if any does not exceed in area by 1/8th of the site. (ii) Any site on which any building existed but completely demolished by flood, fire, incendiary or by any natural clammily. (g) “Government” means the Government of Punjab; Civil Petitions No.1700 & 1701 of 2011 7 (h) “Member” Board of Revenues (Residual Properties) means the Member, Board of Revenue appointed under the Board of Revenue Act/Rules” 15. When Mr. Rizvi, learned ASC was confronted that the allotment relied upon by him does not speak of any ‘public interest’, he promptly responded that ‘public interest’ which was mentioned in paragraph 30, of the un-amended provision of the Scheme, 1977 was deleted through Notification dated 18.10.1977, therefore, it cannot be pressed into service now. Contentions of the learned counsel are fallacious for more than one reason. Firstly, Mr. Rizvi, learned ASC for the Petitioner-School, was not able to controvert that the status of the subject property is ‘residual evacuee property’. Secondly, heading of any provision does not govern or control the substantive provision; it may be used in case of an ambiguity to understand the purport and object of any provision and or enactment thereof. Thirdly deletion of ‘public interest’ in the title of para 30, through amending Notification is purposive and understandable as, by addition of subsection (2) thereof, another class of the property was added viz ‘where a property is partly owned by a person”. Under the added sub paragraph (2) to Paragraph 30 of Scheme, 1977, a part owner was given an option to acquire such property on payment of transfer price’ in which case obviously no public interest would be attracted, which option could not be extended to any other class of persons. Where the property as a whole is available, as “Building Site” as is in the instant cases, its transfer is to be made in the public interest, as is clearly specified in the substantive part of sub paragraph (1) of Paragraph 30 ibid; which remained un- amended. Fourthly, paragraph 30 is not to be read in isolation but, is to be read with Sections 11 & 12 of the Scheme, 1977, which read as follows:- “11. Sale by auction.-- A house, shop or a building site having permanent construction for the transfer of which no application is received and every property that is cancelled from the name of a defaulter and a vacant building site shall be deposed of by unrestricted public auction. 12. Disposal of houses, shops or building sites by negotiation.—If a house, a shop or a building site having been put to auction twice fetches no bid or fetches a bid short of the reserve price, it shall be disposed of by negotiation by inviting sealed tenders which shall be opened by the Deputy Administrator (Residual Properties) of the area concerned in the presence of the tenderers. emphasis If the highest offer made for such a house, a shop or a building site is Civil Petitions No.1700 & 1701 of 2011 8 equal to or exceeds 75% of its reserve price, it may be accepted by the Deputy Administrator (Residual Properties) and where the highest offer made is below 75% of the reserve price but not less than 50%, it may be accepted by the Administrator (Residual Properties), of the area or where the highest offer made is below 50%, it may be accepted by the Member, Board of Revenue (Residual Properties) (underlined to add)”. 16. Admittedly, the land subject matter of the present proceedings is a ‘building site’ within the contemplation of definition of Paragraph 1(d) of the Scheme, 1977 which is as follows:- “(d) ‘Building Site’ means any vacant plot of land which is not within a well defined compound of a permanent building and includes (i) a site on which the permanent construction, if any, does not exceed in area by 1/8th of the site; (ii) any site on which any building existed but was completely demolished by floods, fire, incendiary or by any natural calamity.” 17. Paragraph 12 of the Scheme, 1977 as reproduced above is not attracted for the simple reason that subject property was never “put to auction twice” before invoking “negotiation.” Even negotiation, within the contemplation of Paragraph 12 ibid is not negotiation with one person of any body’s choice, but very intent of Paragraph 12 thereof; is vividly clear that such negotiation is to be carried out “by inviting sealed tenders, which shall be opened by the Deputy Administrator (Residual Properties) of the area concerned in the presence of the tenderers.” In event, highest offer received for such a property is equal to or exceeds 75% of its reserve price, authority vests in the Deputy Administrator (Residual Properties) to accept it and where the highest offer received is below 75% of the reserve price but not less than 50%, authority to accept vests in the Administrator (Residual Properties), of the area or where the highest offer received is below 50%, the authority vests in the Member, Board of Revenue (Residual Properties) to accept the bid, but before accepting bid of highest bidder it is incumbent on the designated authority to negotiate with the highest bidder whosoever it may be to obtain best possible value for the property put to auction. Admittedly, in instant case no sealed tenders or bids from any interested contenders were ever invited, but subject valuable commercial “Building Site” was quietly doled out to the Petitioner- School on the directions of the then Chief Minister, at the rate of Civil Petitions No.1700 & 1701 of 2011 9 agricultural property. Therefore, Mr. Rizvi, learned ASC for the petitioner-School was not able to persuade us to agree with him that the subject property was sold in exercise of power conferred under Paragraph 12 read with paragraph 30, of the Scheme, 1977. Even otherwise record shows that subject property was not sold out to the petitioner-School by the Member, Board of Revenue (Residual Properties), who for the purposes of disposing off the residual evacuee property is the competent authority under the Scheme, 1977. 18. It was next argued by Mr. Rizvi, learned Sr.ASC for the petitioner-School that framing of Scheme by the Government is to be considered as in line with the concept of Principal and Agent. The Government of Punjab acts as a Principal through its agents and in this case by framing the ‘Scheme, 1977’ it did not divest itself from the ownership of the State land, and retained all the plenary and ancillary authority and jurisdiction to deal with its property together with the “Member, Board of Revenue (Residual Properties)”. To support his contention, he has placed reliance on Abdur Rahim v. Federation of Pakistan (PLD 1988 Supreme Court 670). Reliance on cited case is totally misplaced. Contentions are ill- founded. In cited case, the Government in exercise of powers conferred on it under clause 18 (2) of the Customs Act, 1969 imposed regulatory duty, which was sustained by this Court. 19. Any Government under the constitutional dispensation derives power and authority under the constitution itself and or under the legislative instrumentalities as may be conferred by the competent legislature. Any public functionary, how high so ever it may be, is subservient to the Constitution and law and has to act within the boundaries assigned by the Constitution and law framed thereunder. It is now a well entrenched in administrative jurisprudence of Pakistan that all the public functionaries including the Chief Minister is bound to deal with the public property strictly in accordance with the parameters laid by the law, rules and regulation framed thereunder. In a number of cases including in the cases of Abdul Haq Indher v. Province of Sindh (2000 SCMR 907) and Iqbal Hussain v. Province of Sindh (2008 SCMR 105), where the plot of land was allotted on the direction of the Chief Minister, against the law and the scheme, was struck down by the High Court, Civil Petitions No.1700 & 1701 of 2011 10 which was maintained by this Court and it was categorically held by this Court that the public functionaries are not bound to follow illegal orders even of the Chief Minister. In the instant cases, as record shows that on mere desire of the then Chief Minister of Punjab, the Member (Colonies) BOR, Punjab doled out valuable “residual evacuee property” at a throw away price to the petitioner- School, knowing fully well that the subject property is not the State land and that the subject evacuee land could only be disposed off through open auction in terms of the Scheme, 1977 and otherwise, he was not at all competent to undertake such exercise, which authority under the Scheme, 1977 vested in the Member, Board of Revenue (Residual Properties). 20. The Chief Minister, under the constitutional dispensation is neither the King nor Monarch but, is in the domain of trust and under Article 5 of the Constitution of Pakistan he is obligated to obey the Constitution and law like any other ordinary citizen, though he exercises the executive authority as Head of the Provincial Government either directly and or through the Provincial Ministers, in the name of Governor, but exercise of such authority is not brazen or arbitrary but subject to the Constitution, as he has taken oath to “discharge his duties and perform” his functions, honestly, to the best of his ability, faithfully in accordance with constitution of the Islamic Republic of Pakistan and the law”. His desire and direction, how admirable or praiseworthy it may be cannot be implemented by the subordinate formation in utter disregard and breach of law, and or rules and or regulation framed hereunder. All executive orders emanating from highest of the authority must be backed by law. It may be observed that the Government has no unfettered authority to dole out any property in any manner on its own whims and fancy. Indeed, the Government functions and operates through different instrumentality under well guarded rules and procedures and in accordance with law. This Court, at page 1661 in the case of Muhammad Ramzan (ibid) held as under:- “8. With the repeal of the Evacuee Laws in 1975, the unalloted agricultural land vested in the Provincial Government against price paid for it. Thereafter, its disposal had to take place according to the Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no Civil Petitions No.1700 & 1701 of 2011 11 provision for allotments to be made against the pending verified produce index units. For this reason the allotment made after 1975 in favour of the persons from whom the appellant was claiming was wholly without jurisdiction and lacking in authority. Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently, its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and the correct status of the property. On this view of the matter the decree of the Civil Court could also not remain intact.” 21. As discussed above, the petitioner-School was not eligible to be allotted evacuee land under the Scheme, 1977. There is nothing on record to substantiate the claim of the petitioner-School that it was allotted subject land in the public interest. The Chief Minister does not possess any plenary authority and or jurisdiction to allot any land as a matter of grace or favour at his whims and fancy, but in accordance with law. The public functionaries are the custodians of the public/State land, which could only be disposed of in accordance with law. For reference, one may see the cases reported as Union Council Dhabeji v. Al-Noor Textile Mills Ltd (1993 SCMR 7) and Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423), Abdul Haq Indher v. Province of Sindh (2000 SCMR 907), Al-Shafique Housing Society v P.M.A (PLD 1992 SC 113), Taj Muhammad v. Town Committee (1994 CLC 2214) and Sindh Peoples Welfare Trust v. Government of Sindh (2005 CLC 713). 22. For the foregoing discussion, we do not find any reason nor could the learned counsel point out any to interfere with the impugned judgment. Accordingly, leave is declined and the petitions having no merits are dismissed. Chief Justice Judge Judge ISLAMABAD, THE 9th of December, 2014 Zubair Not Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Ejaz Afzal Khan. Mr. Justice Iqbal Hameedur Rahman. Civil Petition No. 1702/2015. (On appeal against the judgment dated 26.05.2015 passed by the High Court of Sindh, Karachi, in C. P. No. D-1306/2012) M.C.B. Bank Limited, Karachi. Petitioner(s). Versus Abdul Waheed Abro, etc. Respondent(s). For the Petitioner(s): Mr. Shahid Anwar Bajwa, ASC. Mr. M. S. Khattak, AOR. For the Respondent(s): N.R. Date of Hearing: 30.09.2015. JUDGMENT Iqbal Hameedur Rahman, J: - The petitioner, through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal against the order dated 26.05.2015 passed by the Division Bench of the High Court of Sindh, Karachi, in C. P. No. D-1306/2012, whereby it upheld the judgments of the fora below and dismissed the constitutional petition filed by the petitioner. 2. The concise facts giving rise to the instant petition are that respondent No. 1 (hereinafter to be referred as “the respondent”) was performing his duties as Cashier at the petitioner’s branch at Rohri when a complaint against him was received that he has failed to credit on the same day an amount of Rs.187,434/- on 28.05.2003. After a probe, charge sheet was issued to him on 12.06.2003 and after inquiry he was dismissed from service on 09.08.2003. After dismissal from service, the respondent served a grievance notice to the petitioner which was not responded to and resultantly he filed grievance application under Section 46 of the Industrial C. P. No. 1702/2015. 2 Relations Ordinance, 2002, before the Labour Court No. VII, Sukkur (hereinafter to be referred as “the Labour Court”). The said grievance application was allowed by the Labour Court vide judgment dated 13.10.2005 and he was ordered to be reinstated in service without back benefits. Thereafter, the respondent as well as the petitioner challenged the judgment of the Labour Court before the Sindh Labour Appellate Tribunal, Karachi (hereinafter to be referred as “the Tribunal”) by filing their respective appeals. The respondent in his appeal had assailed denial of back benefits whereas the petitioner in its appeal had assailed reinstatement of the respondent. The Tribunal vide its judgment dated 27.02.2012 dismissed the appeal of the respondent for non-prosecution whereas the appeal of the petitioner was disposed of with the modification that the dismissal order was converted into stoppage of increments for three years. However, the Tribunal maintained the order of reinstatement in service passed by the Labour Court. The respondent did not agitate the matter further, but the petitioner assailed the concurrent findings of the Courts below before the High Court by filing a constitutional petition which has been dismissed vide impugned order while maintaining concurrent orders of reinstatement in service of the respondent and also maintained the findings of the Tribunal regarding stoppage of increments for three years of the respondent, hence this petition for leave to appeal. 3. The learned counsel for the petitioner contended that the Courts below have failed to appreciate that a proper inquiry had been conducted. The charge of misappropriation leveled against the respondent stood fully established, in fact he had accepted his guilt in writing pursuant to which his uncle namely Allah Lok Abro had undertook to pay an amount of Rs.160,000/- and subsequently the same was deposited. That the respondent C. P. No. 1702/2015. 3 at no stage had complained about the conduct of the inquiry officer or the inquiry proceedings. The Courts below erred in coming to the conclusion that irregularity had been committed in the inquiry proceedings by not allowing the respondent to cross-examine all the witnesses. The respondent duly cross-examined the main witness as such no prejudice had been caused to him. Even otherwise, if the Courts below had come to the conclusion that the inquiry had not been properly conducted the option should have been given to the petitioner to conduct a fresh inquiry. It was further contended that in fact the Tribunal by awarding the penalty of stoppage of increments for three years to the respondent fully indicates that the charge against him stood established and in this regard he placed reliance upon the case of Iqbal Ahmed vs. Muslim Commercial Bank Ltd. (2009 SCMR 903). It was also contended that the High Court had failed to notice that with the repeal of Industrial Relations Ordinance there was no lis before the Tribunal in view of the fact that Industrial Relations Ordinance, 1969 was repealed by the Industrial Relations Ordinance, 2002, which then was further repealed by Industrial Relations Act, 2008, therefore, neither the Industrial Relations Ordinance, 2002 nor the Industrial Relations Ordinance, 1969 could be revived on the strength of Section 6 of the General Clause Act, 1897, or Article 264 of the Constitution of Islamic Republic of Pakistan and in this regard he placed reliance upon the case of Air League of PIAC Employees through President vs. Federation of Pakistan M/o Labour and Manpower Division, Islamabad and others (2011 SCMR 1254). The learned counsel while concluding his arguments urged that with the huge computerization of banking sector the manual operation by personnel have become C. P. No. 1702/2015. 4 redundant as such the banks are already over-staffed so where will the respondent be posted. 4. We have heard the learned counsel for the petitioner and have gone through the judgments of the Courts below as well as the material available on the record. 5. The allegation against the respondent, who was working as a Cashier at the Rohri branch of the petitioner, was that he committed embezzlement or misappropriation which he had denied through his grievance application as being false and frivolous. He rather attributed it to human error. He further contended that he had not been given proper opportunity of fair trial by the inquiry officer as he had not been given the chance of cross- examining all the witnesses. The Labour Court after framing of issues and recording of evidence had come to the conclusion as under: - “28/- From the perusal of the record it appears that there is lacuna and flaws in the case of the respondents because the Enquiry Officer did not provide opportunity to the applicant to cross examine the witnesses. The Enquiry Officer in his cross examination has admitted that on behalf of the management the statement of witness Irshad Soomro, Altaf Hussain Manager Ghulam Mustafa Accountant, Kashif Shaikh Cashier, Muhammad Hassan and Abdul Raseed Ansari were recorded but the opportunity for cross examination to the accused (applicant) was only given to the extent of witness Irshad Ali Soomro. 29. The aforesaid admission on the part of Enquiry Officer clearly shows that he had recorded the statements of as many as 6 witnesses, but opportunity for cross examination was only given to the extent of Irshad Ali Soomro representative of management, who too was not examined and produced by the management in court. 30. It is also an admitted fact that applicant was handed over in police custody on the very same day without registration of any criminal case and was not released unless the payment of the alleged amount was paid by the Uncle of the applicant. The management has also failed to prove that it was a case of misconduct on the part of the applicant and he has mis-appropriated the amount where as the version of the applicant was that the said amount was obtained/received from him by the Manager Altaf Khan. It has also come on evidence that on very same day C. P. No. 1702/2015. 5 in the morning hours when cash was no shortage/short fall of any kind. It is settled law that the Labor Laws are to be interpreted in favour of the workmen and in view of the discrepancies/lacunas as referred above I am of the opinion that it was not a case of misappropriation where major penalty of dismissal from service to be awarded. Admittedly no monetary loss is sustained by the Bank nor there any complaint and evidence against applicant in respect of amount credited after 2 to 3 days in the account of Mehran Corporation. The issue is therefore answered that it is not the case of misappropriation or pocketing hence issue is answered against the management. 31. In view of my findings on issues No.1 to 3, the impugned order of dismissal issued on 9.8.2003 by the respondents Bank is hereby set aside and applicant is reinstated in service, however, not entitled to the back benefits. The respondents is directed to reinstate the applicant in service within a period of 30 days.” The Tribunal while modifying the judgment of the Labour Court held as under: - “ Perusal of record reveals that a domestic enquiry had been conducted and the said Enquiry Officer was examined before learned Labour Court who had admitted that he was given opportunity to the respondent worker to cross-examination only one witness of the bank, while he was not given the opportunity to cross-examine the other witnesses of the bank. However during the domestic enquiry the worker was not provided opportunity to cross-examine the other witnesses. He had allowed the management to cross-examine the respondent worker during domestic enquiry and the said cross-examination reveals that the respondent worker has leveled allegations against the Manager who on information submitted by the respondent worker initiated action against him as the respondent worker himself admitted during cross-examination in the domestic enquiry that he pointed out about the shortage of cash to the Manager and he has also gone to his friends/customers for the arrangement of cash and thereafter he allegedly handed over to Police. This statement of respondent worker is a proof that there is some negligence/fault of the respondent worker that’s why the cash was shortened and which created problems. Perusal of the entire record leads me to the conclusion that there must be some responsibilities lie upon the respondent worker for which he has been rightly charge sheeted and domestic enquiry was conducted, therefore, I am of the view that the management of the bank is entitled to proceed against the respondent worker and as because I find some responsibility of respondent worker, therefore, due to the lacunas in the domestic enquiry, I feel that major C. P. No. 1702/2015. 6 punishment as awarded by the bank cannot be awarded without following the proper procedure of enquiry and as the worker had already faced the problem of unemployment, therefore, I modify the order of the learned Labour Court of straight away accepting the grievance of the respondent worker without considering the lapses on the part of the worker, hence the punishment of dismissal from service shall be converted into stoppage of increment for three years, however, reinstatement order of the learned Labour Court is maintained. Here, I have to mention that the appeal of the respondent worker against the refusal of back benefits as pointed out has already been dismissed in default for non-prosecution by the Tribunal, therefore, there is no question of the grant of back benefits. In view of the above modification the present appeal filed by the appellant bank is disposed of accordingly.” The High Court while maintaining the concurrent findings of reinstatement in service of the respondent came to the conclusion that, “……he was not afforded fair opportunity to defend the charges. Even the inquiry officer appeared in the labour court as witness of management/petitioner also admitted the lapses, oversights and shortcomings in the inquiry. During inquiry, the inquiry officer only allowed the respondent No. 1 to cross examine Irshad Ali Soomro, representative of the management and the respondent No. 1 was cross examined by Irshad Ali Soomro. The representative of management produced at least six more witnesses before the inquiry officer but no opportunity of cross examination was made available to respondent No. 1. This fact was admitted by the inquiry officer, Shaif Muhammad Shaikh during the cross examination in the labour court…….” 6. Perusal of the record reveals that the respondent had not been afforded reasonable opportunity of defending himself as it is quite evident that six witnesses were produced during the inquiry, but the respondent was afforded the opportunity of cross examining only one witness namely Irshad Ali Soomro. In the facts and circumstances of this case, this Court C. P. No. 1702/2015. 7 has held in the case of Muhammad Ataullah vs. Islamic Republic of Pakistan and 2 others (1999 SCMR 2321) as under: - “6. We find that the stoppage of promotion of a civil servant for a specified period on the charge of carelessness in the discharge of duties is as serious a matter as convicting a person for crime because his whole career is ruined, therefore, the order of stoppage of promotion must be based on some evidence. This is according to us a serious lapse on the part of the authorized officer to have not afforded an opportunity of cross-examining the prosecution witnesses appearing against the appellant in support of the charges. Having omitted to afford this opportunity to the appellant, resulting in the impugned order, it was violative of the principle of natural justice enshrined in the maxim: “audi alteram partem” the impugned order is, thus, vitiated on this score alone.” That after the induction of Article 10A in the Constitution of Islamic Republic of Pakistan, 1973, it would postulate that opportunity of fair trial had not been afforded to the respondent by depriving him his right of cross- examining the witnesses as such it could be held that principles and procedures of due process of law and fair trial had not been followed, which are against the principle of natural justice. As regards the contention of the learned counsel for the petitioner that the Courts below should have ordered de novo trial which would have served the purpose of justice, suffice it to say that the High Court had rightly dealt with this aspect in the following manner: - “10. The learned counsel for the petitioner argued that instead of reinstatement of respondent No. 1 the labour court could have directed the petitioner to hold fresh inquiry. The inquiry was initiated in the year 2003. The labour court decided the matter in the month of October, 2005, while the appeal was decided by the labour appellate court in the month of February, 2012. Since then the respondent No. 1 is facing miseries of protracted trial that by no means responsible or accountable for the defects perceptible and discernable in the inquiry, there is no rationality to order fresh inquiry which will make the petitioner back to square without his fault hence we do not want to dwell too much in this regard……” C. P. No. 1702/2015. 8 As far as the plea of the learned counsel for the petitioner that the penalty imposed on the respondent of stoppage of increments for three years is concerned, we are of the view that this contention does not carry much force when the Courts below have concurrently held that the respondent had not been afforded proper opportunity to cross-examine the witnesses as such the respondent has been deprived of the due process of fair trial which being against the principle of natural justice. As regard the contention of the learned counsel for the petitioner relating to posting of the respondent upon reinstatement is concerned, we would like to least comment on the same as it has rightly been observed by the High Court that it is the prerogative of the management of the petitioner to decide the designation/posting of the respondent in accordance with their norms and indoor management. As far as the contention of the learned counsel regarding the effect of repeal of Industrial Relations Ordinance, 2002 is concerned, we are of the opinion that the said argument is not well founded. Section 6 of the General Clauses Act, 1897, operates in such a manner that it allows for the effect of an enactment repealed by any Central Act to continue even after such repeal. A perusal of Section 6 of the Act ibid reflects the same: - “6. Effect of repeal: Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereinafter to be made then, unless a different intention appears, the repeal shall not-- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or C. P. No. 1702/2015. 9 (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation liability, penalty forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.” In the present case Section 6 of the Act ibid shall apply as the initial grievance application filed in the said Labour Court was made under the Industrial Relations Ordinance, 2002, which was repealed by a Central Act i.e., Industrial Relations Act, 2008, thereby fulfilling the requirement of Section 6 of the General Clauses Act, 1897, and bringing it into operation. It is also pertinent here to distinguish between the present case and the case law relied upon by the learned counsel i.e., Air League (supra), in support of his contention. In the said case, the statute governing the dispute was the Industrial Relations Act, 2008 which was repealed not by a Central Act as was the Industrial Relations Ordinance, 2002, but by a sunset clause i.e., Section 87(3), present within the framework of the statute itself. For ready reference Section 87(3) of the Industrial Relations Act, 2008, is reproduced herein below: - “87. Repeal and savings: -……………….. (3) This Act shall, unless repealed earlier, stand repealed on 30th April, 2010.” Thus the case cited in support of learned counsel’s contention stands distinguished. Moreover, it is also necessary to clarify that the mandate contained in Section 6 of the General Clauses Act, 1897, does not call for the revival of a repealed law but rather imputes finality to actions already undertaken. 7. In the above perspective, we are not inclined to interfere in the well reasoned concurrent judgments of all the Courts below while exercising our jurisdiction under Article 185(3) of the Constitution of Islamic Republic of C. P. No. 1702/2015. 10 Pakistan, 1973. Resultantly, leave to appeal is refused and petition is dismissed. Judge. Judge. ISLAMABAD. 30.09.2015. (Farrukh) Approved for Reporting.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mian Saqib Nisar, HCJ Mr. Justice Mushir Alam Mr. Justice Ijaz ul Ahsan Civil Petition No.1707 of 2018 Against the order dated 18.01.2018 passed by Lahore High Court, Lahore in W.P. No.26022 of 2017 NAB thr. It Chairman, Islamabad …Petitioner(s) VERSUS Murad Arshad & others …Respondent(s) For the Petitioner(s): Mr. Imran ul HAq, Spl. Prosecutor, NAB a/w Mr. Zawar Manzoor, I.O. For the Respondent(s): Ms. Ayesha Hamid, ASC Date of Hearing: 22.10.2018 JUDGMENT Mushir Alam, J.- Through instant petition, NAB through its Chairman has approached this Court seeking leave to appeal against the judgment dated 18.01.2018 rendered in Writ Petition No.26022 of 2017, whereby learned Division Bench of the Lahore High Court, Lahore was pleased to the enlarge the Respondent No.1 Murad Arshad to post arrest bail. 2. Globaco (Pvt.) Ltd. under arrangement with Defence Housing Authority launched a subsidized scheme, for JCOs, NCOs and army personals under the banner of DHA City, Lahore for which the company was required to procure 25,000 Kanal of land, however the company only acquired 13,092 Kanal of land. It is the case of NAB that the company lured general public through campaign to invest in the project. However, it appears that on the basis of large number of complaints received from the general public by the NAB initially against the management of DHA City alleging cheating of public at large, while enquiry against such complaints was afoot another complaint was received from Defence Housing Authority, Lahore against Globaco (Pvt.) Ltd./Orange Holding (Pvt.) Ltd. Civil Petition No.1707 of 2018. -2- alleging corruption and corrupt practices. Initially enquiry was authorized by the DG NAB-L on 4.5.2005. Further enquiry was re-authorized on 2.11.2015, which was later upgraded into investigation vide order of the competent authority on 7.4.2016, on the strength of which on 16.6.2016 Interim Reference No. 32/16 was filed against Hammad Arshad and three other Co-accused persons, which did not include the name of Respondent No.1 Murad Arshad, before the Accountability Court No. IV, Lahore. 3. Respondent No.1 apprehending his arrest filed Writ Petition No.707 of 2016, which was disposed of by the Lahore High Court, Lahore on 26.01.2016 observing that “if at any subsequent stage any need for arrest of petitioner accrues, then grounds of their arrest shall be communicated to them and in the said eventuality they would have a remedy to again approach this Court by way of a due application.” 4. It appears that on the basis of interim reference, charge was framed on 1.3.2017 and the trial against the accused person nominated therein commenced. From the record it reflects that role of the Respondent No.1 Murad Arshad came into prominence when during course of continuing investigation and trial it revealed that being director in M/s Orange properties Private Ltd, which was holding company of Globaco (Pvt.) Ltd.; he is instrumental and in active connivance with his brother and co-accused Hammad Arshad and other co-accused persons have enriched themselves by diverting colossal sums of money received from general public into the account of various companies of which they were directly and indirectly the beneficiary. Consequently grounds of arrest dated 9.05.2017 (page 87 of the file) were served, through his chowkidar. He was arrested on 10.5.2017 and was produced before the Accountability Court and remand was obtained on 11.5.2017 Respondent No.1 was formally nominated in supplementary Reference filed on 21.8.2017. 5. Respondent No.1 invoked the writ jurisdiction of the High Court on 15.5.2018 through Writ Petition No.26022 of 2017. Learned Bench after notice and hearing the parties was pleased to concede bail through impugned judgment dated 18.01.2018 mainly highlighting his role and Civil Petition No.1707 of 2018. -3- criminal liability (paragraphs 12 to 16 of the impugned Judgment) as shareholder and Director of offending company and of other companies he was statedly holding directorship and beneficial interest. Learned Bench relied upon the cases all invariably based on Salomon vs. Salomon and Co. Ltd. [1897] A.C. 22) and extended benefit of corporate veil to the Respondent No.1 holding that “that the Court could not figure out any direct and active participation/involvement of the Petitioner” and that vital decision were not taken by him,… that the investigation to his extent is complete and that “the role of the petitioner is yet to be properly figured out which is possible after recording of evidence against the petitioner.” The Court while conceding bail to the respondent was influenced by the fact the other co-accused Muhammad Hammad Arshad was originally charged in the Reference, when Respondent No.1 was not the accused and despite orders dated 26.01.2016 of the Court in earlier Writ Petition No.707 of 2016 as noted above, NAB “had not even permitted him to approach the Court in violation of the direction/observation given by the Court”. 6. It was argued by Mr.Imran ul Haq, learned Special Prosecutor NAB, that the respondent No.1 and his brother co-accused are the Directors of M/s Orange Holdings (Pvt.) Ltd. which is holding company of Globaco (Pvt.) Ltd.; which by launching subsidized housing scheme under the banner of DHA City Lahore, essentially for the families of JCOs, NCOs and Army Personals, lured and induced members of public at large to invest Rs.15.476/- billion out of which major amount of Rs.13.2/- billion were directly transferred in the bank accounts of their various companies of which both the brothers were holding controlling and beneficial shares. It is argued that large number of commercial plots and amenity plots were fraudulently got transferred through the help of other co-accused persons by deceiving Bank of Punjab and DHA authorities and transferred land in favour of Bank of Punjab to offset liability of their company as detailed in the supplementary reference filed through CMA No.6523 of 2018. It was argued that NAO, 1999 is a special law, all offences are non bailable, even the provisions of Criminal Procedure Code regulating bail and or even suspension of sentence are specifically excluded in application by virtue of Civil Petition No.1707 of 2018. -4- section 9(b) of the NAO, 1999. According to him, grant of bail in respect of offences committed under the NAO, 1999 is an exception. According to him Respondent cannot be allowed to take shield behind the corporate veil, which aspect of the matter was not considered by the High Court. 7. Learned ASC for the Respondent No.1 supports the impugned judgment. It was urged that the Respondent No.1 was roped in the subject Reference much later through supplementary Reference dated 21.8.2017. He has no dominating control over the affairs of the company. It was urged that impropriety if at all was that of a limited liability company and other nominated and apprehended co-accused are already facing the trial. According to learned ASC, Respondent No.1 was merely meager share holder in the company cannot be saddled with personal and or criminal liability if any of the company, which has separate juristic entity. It was urged that the arrest was violative of the order dated 26.1.2016 passed by the Lahore High Court in earlier Writ Petition No.707 of 2016, as all along the Respondent No.1 was appearing before the Investigation Officer, there was no occasion to cause his arrest. 8. We have heard the arguments and perused the record. The Respondent No.1 invoked the constitutional jurisdiction of the High Court under Article, 199 of the Constitution of Pakistan, 1973 challenging his arrest made on 10.5.2017, warrants of arrest dated 9.5.2017 and remand Order dated 11.5.2017 being against the provisions of the Constitution, illegal, without jurisdiction and against the order of the High Court and also sought protective bail to enable him to approach High Court in terms of Order dated 26.1.2016 passed in W.P. No.707 of 2016. 9. It is a matter of record that the Murad Arshad, Respondent No.1 herein, is one of the Director and shareholder in various companies as detailed in paragraph No.24 of the supplementary Reference No.32/2016 dated 21.8.2017 and holds beneficial interest therein alongwith his brother Hammad Arshad, who is already facing trial along with other co-accused persons. Respondent No.1 is nominated in subject Reference unveiling land scam and syphoning money through various companies under the cover of Civil Petition No.1707 of 2018. -5- DHA City project, Lahore. The project was to be executed by Globaco (Pvt.) Ltd., a subsidiary of Orange Holding (Pvt.) Ltd., in both the companies Respondent No.1 was holding directorship and shareholding with his brother co-accused in the matter. He apprehending his arrest filed Writ Petition No.707 of2016, seeking protection against arrest which was disposed of on 26.01.2016 observing, “The learned officer, on the basis of information furnished by the I.O., has contended that till now no document towards arrest of the Petitioners is available with the NAB and that arrest of the petitioners would only be required, when any such document is issued by the competent authority” ……….. “It is made clear that if at any subsequent stage any need for arrest of petitioners accrues, then grounds of their arrest shall be communicated to them and in the said eventuality they would have a remedy to again approach this Court by way of a due application.” 10. However as noted in the narrative, the grounds of arrest, which according to NAB could not be served on the Respondent No.1, who avoided to associate with investigation and circumvented to receive such grounds of arrest, same were delivered to his gatekeeper/chowkidar. We have noted that such facts are narrated by the Respondent No.1 in paragraph 17 of his Writ PetitionNo.26022 of 2017. 11. National Accountability Ordinance, 1999 is a special law, it has been enacted with an objective to combat white collar crime of high magnitude, it provides for taking effective measures for the detection, investigation, prosecution and expeditious trial of offences as enumerated under section 9 of the NAO, 1999 made punishable under section 10 read with schedule thereof. All offences under the NAO, 1999 are made non- bailable not withstanding general provisions of Code of Criminal Procedure, 1898 viz. Sections 426, 491, 497, 489 and 561-A thereof, which regulate power of Courts to suspend sentence, pass order in the nature of habeas corpus, pre-arrest, post-arrest bail, inherent power of the High Court in furtherance of power under the Code to, prevent abuse of process of Court or otherwise to secure ends of justice by virtue of non-obstinate provisions of Section 9(b) of the NAO, 1999. Jurisdiction and authority of Civil Petition No.1707 of 2018. -6- Courts of general criminal jurisdiction, High Court and this Court to concede bail under the NAO, 1999 either pre-arrest or post arrest etc. has remained under judicial scrutiny since its very promulgation. There are chain of authorities dilating on such aspect of the case right from the full Bench of the Lahore High Court in the case of Anwar Saifullah vs. The State and 4 others (PLD 2000 Lahore 564) wherein it was held that “the High Court had jurisdiction under Article, 199 of the Constitution to grant bail to a person accused of an offence under NAB Ordinance in appropriate cases.” This Court affirmed such position in the case of Anwar Saifullah Khan vs. The State and 3 others (2001 SCMR 1040) and by a larger Bench (four members) in the case of Khan Asfandyar Wali and others vs. Federation of Pakistan through Cabinet Division and others (PLD 2001 Supreme Court 607) and such view has since been followed consistently, in the case of Ghulam Ali vs. The State through AG, NWFP, Peshawar and another (2003 SCMR 597) keeping in sight the amended provision section 9(b) of NAO, 1999 at page 604 it was held “…..the legal position regarding maintainability of bail application under section 497 Cr.P.C before the High Court in case under NAB Ordinance, would remain as such and an accused of such an offence cannot maintain a bail application before the High Court under Section 497 Cr.P.C.” One may find detailed discussion on such aspect of the matter in a very recent pronouncement of this Court reported as Olas Khan vs. Chairman, NAB (PLD 2018 Supreme Court 40). 12. We have noted that the learned Bench of the Lahore High Court in the impugned judgment has laid much emphasis on the doctrine of ‘corporate veil’ and based on such doctrine in a lengthy discussion extended benefit of bail to the Respondent No.1. Pakistan by and large is under influence of common law doctrine and the principle that body corporate has a separate and distinct entity, and shareholders cannot be held liable for the act of corporate entity as propounded in the leading English case reported as Salomon vs. Salomon & Co. Ltd. [1897] A.C. 22], though well entrenched in common law jurisdiction, which is based on public policy and grounded on public good. It was for quite some time sacredly followed in common law jurisdiction, indeed veil of incorporation Civil Petition No.1707 of 2018. -7- cannot be pierced as a matter of course in each and every case and there has to be some justifiable reasons, which may warrant in doing so. “That is, because of the corporate veil, shareholders are not responsible for paying the debts of the corporation (beyond the level of their own investment) and generally are not legally liable for any crimes the corporation might commit. While the corporate veil protects shareholders, it may be disregarded under certain circumstances, notably if a shareholder assisted the corporation in the commission of a crime”. (see corporate veil as defined at https://financial- dictionary. thefreedictionary.com) 13. The Courts in various jurisdictions adopted progressive approach under compelling circumstances to scrutinize such legal attire piercing the veil of incorporation to identify the real schemers and players indulged in such acts of omission and commission and seeking refuge behind such cloak and got away unchecked and unaccountable for the wrong done. However, such doctrine is no more treated sacred or revered rule of thumb, Lord Denning in Lazarus Estates Ltd v. Beasley [1956] 1 QB 702, at page 712 held that “No Court in this land will allow a person to keep an advantage which he had obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand it if has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever...” In the case of Littlewoods Mail Order Stores Ltd. vs. Inland Revenue Commissioners [(1969)1 W.L.R 1241], Lord Denning, spearheaded to dilute such legal fiction and opined that "the doctrine laid down in Soloman's case has to be watched very carefully. It has often been supposed to cast a veil over the personality of a limited company through which the Courts cannot see. But that is not true. The Courts can, and often do, pull off the mask." One may gainfully see Woolfson vs. Strathclyde Regional Council [1978] SC(HL) 90, Adams & others vs. Cape Industrial PLC and another [(1990) CH 433], Trustor AB vs. Smallbone [(No 2) (2011) 1 WLR 1177], Standard Charter Bank vs. Pakistan National Shipping Corp and others [(2003) 1 AC 952]. In the case of Life Insurance Corp of India vs. Escorts Ltd. and others [(1986) 1 Supreme Court Civil Petition No.1707 of 2018. -8- Cases 264] at the conclusion of para-90 at page-336 Indian Supreme Court identified four key instances when corporate veil can be pierced “i) where a statute itself contemplates lifting the veil, or ii) fraud or improper conduct is intended to be prevented, or iii) a taxing statutory beneficent statute is sought to be evaded or iv) where associated companies are inextricably connected as to be in reality, part of one concern. List of instances where veil of incorporation could be lifted as noted in cited case, is merely illustrative and not exhaustive. Case of Union Council, Ali Wahan, Sukkur vs. Associated Cement (Pvt.) Limited (1993 SCMR 468) is quite illustrative of circumstances in which veil could be lifted. In the case reported as Standard Chartered Bank vs. Pakistan National Shipping Corporation of Pakistan reported as [2003] 1 AC 952= [2003] 1 All ER 173 defence of the director of PNSC signing the Bill of Lading sought to avoid personal liability saying it was act of the Company was not accepted. 14. Veil of incorporation and circumstances under which it could be lifted depends on facts and circumstances of each case and statutory regime applicable to such facts. Then the Courts do keep in sight the purpose and object a statutory regime intends to achieve and remedy the mischief under which acts of omission and or commission seemingly of a body corporate could be pressed into service as against personal criminal liability and or civil obligation of a Partner, Director, Shareholder, promoter or employee of a company, corporation and or firm whatever attire it may choose to wear or a Court may look behind such attire to identify real person who is exercising and managing the control and the affairs of such body corporate or firm or any combination thereof etc. that is under scrutiny viz-a-viz public interest and affectees of act of omission and commission of such legal entities etc. under relevant statutory regime. In many a jurisdiction including Pakistan many a times corporate attire is being abused for covert purposes to fleece innocent public, commit fraud, launder crime money, convert ill-gotten gain and conveniently getting away with it and escape criminal liability etc; Organization for Economic Cooperation and Development (OECD) in its Report titled as “Corporate Vehicle for Illicit Purpose (2001) in Executive Summary, at page-7 noted Civil Petition No.1707 of 2018. -9- “….While corporate vehicles play an essential role in the global economic system, these entities may, under certain conditions, be misused for illicit purposes, including money laundering, bribery/corruption, hiding and shielding assets from creditors, illicit tax practices, self-dealing/defrauding assets/diversion of assets, market fraud and circumvention of disclosure requirements, and other forms of illicit behavior” (www.oecd.org/daf/ca/43703185.pdf). Pakistan, fully cognizant of such happing, made headway in framing law that permits piercing the corporate veil and foisting criminal liability and civil obligation on real actors, perpetrators and natural persons behind such legal attire for instance section 38 of Drug Act, 1940 now section 34 of the Drug Act, 1976 whereunder “every director, partner and officer of the company. Corporation, firm with whose knowledge and consent the offence was committed”, is held liable for the offence under the Drug Act, 1976 [Superintendent of Police, Federal Investigation Agency, Lahore and another vs. Akhtar Hussain Bhutta (PLD 1978 Supreme Court 193)]. Under section 5 of the NAO, 1999 definition of accused includes (d) “Associates”, and in Clause (o) definition of “person” thereof, is defined to means: “(d) Associates” means:-- (i) any [person] who is or has been managing the affairs [of] or keeping accounts [for] the accused or who enjoys or has enjoyed any benefit from the assets. (ii) any association of persons, body of individuals, partnership firm or private limited company within the meaning of Companies Ordinance, 1984, of which [the accused] is or has been a member, partner or director or which has been promoted, floated, established or run by the accused, whether singly or jointly, with other persons”. (iii) a trustee of any trust declared by the accused, or of which the accused is also a trustee or a beneficiary; and” (iv) a benemidar”. (o) “Person”, [unless the contest otherwise so requires] includes in the case of a [company Civil Petition No.1707 of 2018. -10- or a body corporate], the sponsors, Chairman, Chief Executive, Managing Director, elected Directors by whatever name called, and guarantors of the company [for body corporate] or any one exercising direction or control of the affairs of such [company or a body corporate], […..] and in the case of any firm, partnership or sole proprietorship, the partners, proprietor or any person having any interest in the said firm, partnership or proprietorship concern or direction or control thereof. Above provisions sufficiently demonstrate that all those persons who are found to be handling the affairs of a corporate and or legal entity in whatever legal attire or façade used to carry out any commercial and or other activity and commit any wrong and or act of omission and or commission which come within the mischief of any clause of section 9 and punishable under section 10 read with schedule thereto gives sufficient power to NAB authorities to lift the veil of incorporation and trace out the real actors and mastermind behind such façade. 15. It appears that on the basis of interim reference, charge was framed on 1.3.2017 and the trial against the accused person nominated therein commenced. 16. In a case reported as Hema Mishra vs. State of Uttar Pardesh and others (2014) 4 Supreme Court Cases 453 = AIR 2014 Supreme Court 1066 in somewhat similar circumstances in paragraph-13 the Indian Supreme Court noted that provisions similar to Section 438 Code of Criminal Procedure (for Pre-arrest bail) was expressly done away with in the State of Uttar Pradesh, the High Court is burdened with large number of writ petitions filed under Article 226 of the Constitution of India seeking pre- arrest bail. (the legality of was upheld in Kartar Singh vs. State of Punjab [(1994) 3 Supreme Court Cases 569)]. In Paragraphs-17 and 37 it was held as follows: (17) Though it cannot be said that the High Court has no jurisdiction to entertain an application for bail under Article 226 of the Constitution and pass orders either way, relating to the cases under the Act 1987, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme circumstances. But the Civil Petition No.1707 of 2018. -11- judicial discipline and comity of courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters; …. …. 37. Thus, such a power has to be exercised very cautiously keeping in view, at the same time, that the provisions of Article 226 are a devise to advance justice and not to frustrate it. The powers are, therefore, to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by authorities indiscriminately making pre- arrest of the accused persons. In entertaining such a petition under Article 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438, Code of Criminal Procedure proceedings, keeping in mind that when this provision is specifically omitted in the State of Uttar Pradesh, it cannot be resorted to as to back door entry via Article 226. On the other hand, wherever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its power under Article 226 of the Constitution. It is again clarified that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified”. 17. Since the promulgation of Ehtisab Act, 1997 as succeeded by NAO, 1999 jurisdiction of Trial Court i.e. Accountability Court has been expressly ousted to concede bail, which in turn has burdened all the High Courts with load of bail application under Article, 199 of the Constitution, 1973. As held in the case of Hema Misra (Supra) jurisdiction under Article, 199 of the Constitution has to be exercised with circumspection and caution as extraordinary jurisdiction is invoked and exercised to advance the cause of justice and not to frustrate it or to defeat the intent of law. The jurisdiction under Article, 199 of the Constitution, 1973 are therefore to be exercised to prevent miscarriage of justice and abuse of NAO, 1999. Such jurisdiction is not to be exercised as a substitute of power under sections 426,491, 497,489 and 561-A of Code of Criminal Procedure 1898 liberally and indiscriminately converting High Court into wholly Court of ordinary criminal jurisdiction. Civil Petition No.1707 of 2018. -12- 18. Reverting to merits of the case, role of Respondent No.1 is detailed in investigation report and in paragraph-17 onwards of the Supplementary Reference No. 32/2016 dated 21.8.17, his name appears in Form-29 and Form-A of the offending companies. His signature appears on documents and on cheques of substantial amount deposited in the account of companies of which he is one of the shareholders and there is serious allegation that he in connivance with other co-accused not only transferred plots to the Bank of Punjab to offset liability of another company of which he is alleged to be one of the beneficiary, in the wake of serious allegations of siphoning off and misappropriation of colossal amount of 10421 members of the public as detailed in the supplementary reference and his role as an active participant and decision makers in running the affairs of Globaco Pvt. Ltd., he is alleged to have committed offence as defined under clause (iii), (iv), (vi), (ix) and (xii) of section 9 of NAO, 1999. Respondent No.1 along with his brother co-accused Hammad Arshad already facing trial cannot under facts and circumstances, be given benefit of corporate veil when per definition clause 5 (d) and (o) of Section 5 of NAO, 1999 gives NAB authorities power to pierce the veil of incorporation and nail down the real persons under whose dictate and command affairs of errant corporate entity were conducted and to find out who is the actual and real actor and beneficiary of crime committed under the NAO, 1999. In this view of the matter sufficient material is available to connect the Respondent No.1 as exercising effective control of the errant companies cannot be exonerated from explaining his position and role as an “Associate” as defined in clause (d) and a “Person” within the contemplation of clause (o) of section 5 of the NAO, 1999. In the case of The State vs. Haji Kabeer Khan (PLJ 2005 Supreme Court 950= PLD 2005 Supreme Court 364) after reviewing large number of cases, this Court recalled the bail granted by the High Court and relying on Khan Asfanyar Wali case (Supra) observing that “It is to be noted that under the NAB Ordinance there is no provision for grant of bail before arrest, therefore, this Court while examining vires of section 9(b) of the NAB Ordinance in the case of Khan Asfanyar Wali case (ibid) took view that High Court shall exercise this power sparingly in rare and exceptional Civil Petition No.1707 of 2018. -13- circumstances for valid reason to be recorded in writing In this behalf reference can be made to the case of Meeran Bux versus The State (PLJ 1986 Supreme Court 83) and Murad Khan versus Fazal-e-Subhan and another (PLD 1983 Supreme Court 82). As such we are of the opinion that the powers for the grant of bail Court has to be exercised strictly keeping in view the observation made therein but it seems that the learned High Court had not recorded reasons indicating the exceptional circumstances for exercising extra ordinary constitutional jurisdiction in favour of respondent particularly in case in which accused had not been arrested and no ground of mala fide for bail before arrest has been attributed to the prosecution in the memo of petition.” such view has been consistently followed see case of Nisar Ahmed vs. The State and others (PLD 2016 Supreme Court 11) and as recently as in Olas Khan (Supra). 19. In view of the forgoing reasons, the Petition was accepted vide short order dated 22.10.2018 which reads as follows: “For the reasons to be recorded later, by accepting this petition and setting aside the impugned order, it is held that the bail granted to respondent No.1 (an accused in Reference No.2 of 2016) is absolutely against the principles for grant of bail which (bail) is hereby cancelled, therefore, he be arrested immediately in the aforementioned reference.” Chief Justice Judge Judge Islamabad, the 22nd of October, 2018 Approved for Reporting

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE SYED HASAN AZHAR RIZVI CIVIL PETITION NO. 173-Q OF 2023 (On appeal against the judgment dated 12.05.2023 passed by the High Court of Balochistan, Quetta in C.P. No. 1916/2022) Abdul Nafey … Petitioner Versus Muhammad Rafique and others … Respondents For the Petitioner: Mr. Kamran Murtaza, Sr. ASC For the Respondent (1): Mr. Muhammad Rafique, in person (Via video link from Quetta) For the Respondent (2): Mr. Ayaz Khan Swati, Addl. A.G. Balochistan For Respondents (3-5): Mr. Muhammad Arshad, D.G. (Law), ECP Mr. Falak Sher, Legal Consultant, ECP Date of Hearing: 09.08.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the judgment dated 12.05.2023 passed by the learned High Court of Balochistan, Quetta whereby the Constitutional Petition filed by the petitioner was dismissed and the order of the learned Election Tribunal/Appellate Authority, District Chaman was upheld. 2. Briefly stated the facts of the case are that to contest the Local Bodies Elections as a Ward Member, the petitioner submitted his nomination papers from Ward No. 15, Municipal Corporation, Chaman, which were accepted by the Returning Officer vide order dated 25.04.2022. The respondent No. 1, who was also contesting elections from the same constituency, challenged the acceptance of nomination papers of the petitioner on the CIVIL PETITION NO. 173-Q OF 2023 -: 2 :- ground that the petitioner’s age is less than 21 years and as per Section 24(b) of the Balochistan Local Government Act, 2010, he is not qualified to contest the election but the same was not entertained. The respondent No. 1 filed an appeal before the District & Sessions Judge, Chaman/Election Tribunal/Appellate Authority but the same was dismissed vide order dated 30.04.2022. The main ground urged by the petitioner before the Appellate Authority was that although according to CNIC he is underage to contest the elections as his date of birth has been mentioned as 01.01.2002 but according to his school record his date of birth is 05.02.2000, therefore, he was above 21 years of age at the time of filing of the nomination papers. Eventually, the elections were held on 29.05.2022 wherein the petitioner was declared to be the returned candidate and a notification to this extent was issued on 22.06.2022. In the meantime, the respondent filed Constitutional Petition No. 925/2022 before the learned High Court against the order of Appellate Authority but the learned High Court vide order dated 16.06.2022 directed him to again approach the Appellate Authority for redressal of his grievances. Thereafter, the respondent No. 1 again approached the District & Sessions Judge/Election Tribunal Chaman, who accepted the Election Petition and set aside the notification dated 22.06.2022 whereby the petitioner was declared as returned candidate. The petitioner then filed Constitution Petition No. 1916/2022 before the learned High Court of Balochistan, Quetta but the same has been dismissed vide impugned order. Hence, this petition seeking leave to appeal. 3. At the very outset, learned counsel for the petitioner submitted that earlier the CNIC on which the respondent was relying has been corrected by NADRA according to the school record of the petitioner and this correction had already been made while the matter was pending before the learned High Court but the learned High Court did not take into consideration this aspect of the matter. 4. On the other hand, learned Additional Advocate General Balochistan, the respondent No. 1 who appeared in person and the Law Officers of the Election Commission of Pakistan have defended the impugned judgment. CIVIL PETITION NO. 173-Q OF 2023 -: 3 :- 5. We have heard the learned counsel for the parties and have perused the available record with their able assistance. 6. There is no denial to this fact that on the last date of filing of the nomination papers i.e. 21.04.2022, the date of birth of the petitioner according to his CNIC was 01.01.2002 meaning thereby that he was about 20 years of age. In this view of the matter, the learned High Court has rightly declined to provide relief to the petitioner by placing reliance on Section 24(1)(b) of the Balochistan Local Government Act, 2010. For the ease of reference, the relevant provision is reproduced as under:- “24. Qualifications for candidates and elected members.(1) A person shall qualify to be elected or to hold an elective office or membership of a local council, if he- (b) is not less than twenty one years of age on the last day fixed for filing the nomination form” 7. So far as the argument of learned counsel for the petitioner that according to school record of the petitioner, his date of birth was 05.02.2000 and he was above 21 years of age is concerned, the same is of no help to the petitioner because nowhere in the Balochistan Local Government (Election) Rules, 2013, it is mentioned that the date of birth of a candidate will be considered as per his school record. On the contrary, a bare reading of Section 13 of the said Rules shows that any person whether he is a candidate, a proposer or a seconder must have Computerized National Identity Card to meet the requirements mentioned in the Act & Rules, which means that the credentials of a person on the CNIC would be given preference. It would be advantageous to reproduce the relevant portion of the said Rules, which reads as under:- “13. Nomination for election.--- (1) ……………… (2) Any voter of a ward who is in possession of Computerized National Identity Card (CNIC) may propose or second the name of any duly qualified person who is also in possession of Computerized National Identity Card (CNIC) to be a candidate from that ward.” 8. It is settled law that when meaning of a statute is clear and plain language of statute requires no other interpretation then intention of Legislature conveyed through such language has to be given full effect. Plain CIVIL PETITION NO. 173-Q OF 2023 -: 4 :- words must be expounded in their natural and ordinary sense. Intention of the Legislature is primarily to be gathered from language used and attention has to be paid to what has been said and not to that what has not been said. Reliance is placed on Government of KPK Vs. Abdul Manan (2021 SCMR 1871) and JS Bank Limited Vs. Province of Punjab through Secretary Food, Lahore (2021 SCMR 1617). Learned counsel for the petitioner put much stress on the point that the correction in the CNIC had already been made while the matter was pending before the learned High Court. However, on our specific query, he admitted that he sought correction in the NADRA record after the election schedule had been announced. In this eventuality, a right had accrued in favour of the contesting candidates, which cannot be taken away without any cogent reason. Learned counsel could not convince us as to when on the date of filing of nomination papers the petitioner was not qualified, how can the defect be cured later on. Even otherwise, while seeking such an alteration/correction in the date of birth, a declaration is sine qua non which can only be issued by the Civil Court of competent jurisdiction on the basis of evidence produced during the proceedings regarding the authenticity of the subject matter. Reliance is placed on Muhammad Khalid Mandokhail Vs. Government of Balochistan (2021 SCMR 595) and Shahid Ahmed Vs. OGDCL (2015 PLC (CS) 267). 9. For what has been discussed above, this petition having no merit is accordingly dismissed and leave to appeal is refused. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 9th of August, 2023 Approved For Reporting Khurram

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In the supreme court of pakIstan ( Appellate Jurisdiction ) BENCH Mr. Justice Amir Hani Muslim Mr. Justice Mushir Alam Mr. Justice Mazhar Alam Khan Miankhel CIVIL PETITION NO.173 OF 2017 (On appeal against the judgment dated 27.01.2017 Passed by the High Court of Sindh Karachi, in CMA No.721/2017 in Misc. Appeal No.58/2015) Pakistan Electronic Media Regulatory … … Petitioner Authority Versus Labbaik (Pvt) Ltd and another … … Respondents For Petitioner : Mr. Zahid F. Ebrahim, ASC Mr. Kashif Hanif, ASC Mr. Tariq Aziz, AOR For Respondents : Not represented. Date of hearing : 31-01-2017 O R D E R Through these proceedings, the Petitioner has impugned the interim order passed by the learned High Court of Sindh in Miscellaneous Appeal No.58 of 2015; whereby it has suspended the operation of the prohibition order dated 26.01.2017, passed by the Chairman of the Petitioner, till the next date and also sought comments from the alleged contemnor, the Chairman, Pakistan Electronic Media Regulatory Authority (hereinafter referred to as the Authority). 2. The learned Counsel for the Petitioner states that the Respondent No.1 has filed a Miscellaneous Appeal No.58 of 2015 under Section 30-A of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (hereinafter referred to as the Ordinance), challenging the order dated 16.9.2015; whereby the Petitioner has suspended the licences of CP.173/2017 2 Satellite TV Channels “BOL NEWS” and “BOL Entertainment”. The prayer in the said Miscellaneous Appeal is reproduced hereunder:- “It is, therefore, respectfully prayed that this Hon’ble Court may be pleased to set aside the impugned order dated 16.09.2015 (23-9-18), passed by the Authority and allow Appeal of the Appellants. Further, grant cost of the proceedings and grant any other relief which this Honourable Court may deem fit and proper under the circumstances of the case.” 3. The learned High Court had suspended the order dated 16.09.2015, of the Petitioner/Authority which was communicated through press release on 23.09.2015, by its interim order dated 28.09.2016, with the observation that the Petitioner or any person acting on behalf of the Petitioner shall not take any coercive action against the Respondent No.1, by any means and further ordered the Petitioner to act strictly in accordance with law. The learned Counsel contends that the order dated 16.09.2015 was withdrawn by the Petitioner/Authority on 19.10.2016 and the learned High Court was informed accordingly. Even on 08.11.2016, the Petitioner filed application in the Court to confirm the fact that order challenged in appeal has been withdrawn by the Petitioner. The learned Counsel submits that after withdrawal of the order dated 16.09.2016, passed by the Petitioner, the learned High Court was bound to dismiss the Appeal as having become infructuous, instead the learned High Court did not dispose of the Appeal. 4. On 23.12.2016, the Petitioner/Authority has issued a show cause notice to the Respondent No.1 for revocation of the licence of Respondent No.1’s channel after the security clearance of its Directors was rejected by the Ministry of Interior. This show cause notice was not challenged by any independent proceedings instead a C.M.A was filed challenging the order in the Miscellaneous Appeal No.58 of 2015. CP.173/2017 3 Alongwith the C.M Application, a contempt application was also filed against the Petitioner, inter alia, on the ground that the show cause notice issued to the Respondent No.1 amounts to defiance of the order of the Court passed on 28.09.2016. The learned High Court while issuing notice on both the Applications, suspended the show cause notice, vide order dated 02.01.2017, staying the action of the Petitioner/Authority pursuant to the show cause notice dated 23.12.2016. 5. The Petitioner further claims that the show cause notice dated 23.12.2016 was issued on an independent cause of action and it has no nexus or bearing with the order passed by the Petitioner on 16.09.2016 in the Miscellaneous Appeal No.58 of 2015 and become infructuous on 16.09.2016. The Counsel contends that the show cause notice issued by the Petitioner could only be challenged by a separate appeal and not in Miscellaneous Appeal No.58 of 2015. 6. The learned Counsel for the Petitioner next contended that on 16.01.2017, the Authority on different complaints being received by it, took notice on 26.01.2017, by issuing a prohibition order, in terms of Section 27 of the Ordinance, whereby it restrained the programme “Aisay Nahi Chalay Ga” telecast by Dr Aamir Liaquat Hussain. Inspite of the prohibition order passed by the Petitioner/Authority, on the same evening the said Doctor Aamir Liaquat continued the programme and on the following day, the Respondent No.1 made Application C.M.A.No.721 of 2017, challenging the prohibition order and also filed another contempt application, which order was passed on a separate cause, by the competent authority of the PEMRA. CP.173/2017 4 7. The learned High Court has entertained the Miscellaneous Applications of the Respondent No.1 in the same Appeal which became infructuous overlooking the scope of the Appeal, granted interim relief while issuing notice to the Petitioner even on contempt Application. 8. The learned Counsel for the Petitioner has contended that in the first place, the learned High Court has become functus officio, as the order appealed against was withdrawn on 19.10.2016, which fact was brought to the notice of the learned High Court not only on 19.10.2016 but also on 08.11.2016 by an Application. The learned Counsel next contended that through these orders, which were passed subsequent to the order dated 19.10.2016, the learned High Court has enlarged the scope of the Appeal, by entertaining the Miscellaneous Application of the Respondent No.1, through which it has challenged the orders passed by the Authority at times on independent causes. The learned Counsel for the Petitioner has contended that passing of interim orders at times has led the Authority to stand still. The interim orders passed by the learned High Court without examining the merits and material had made the Petitioner dysfunctional. 9. The learned Counsel for the Petitioner contends that all the orders passed in these proceedings by the competent authority of the Authority/PEMRA were in conformity with the Ordinance and issuance of the notices on contempt applications were without jurisdiction. 10. We have heard the learned Counsel for the Petitioner and have perused the record. The Appeal is fixed for hearing before the learned High Court tomorrow, therefore, we are not inclined to pass any further order and will wait for the orders which are yet to be passed by the High Court in these proceedings. However, we issue notice to the Respondents CP.173/2017 5 for a date in the next week and in the intervening period, restrained the High Court from proceeding against the Chairman, PEMRA, or any other person on the contempt applications filed by the Respondent No.1 at times under the garb of orders passed by them against the Respondent No.1. The Registrar of the High Court of Sindh, Karachi, shall immediately place this Order before the Bench hearing Miscellaneous Appeal No.58 of 2015. To come up on 06.02.2017. Judge Judge Islamabad, the 31-01-2017 Sohail/* Judge

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAQBOOL BAQAR CIVIL PETITIONS NOS.1774, 1783 & 410-Q OF 2014 (Against the judgment dated 20.8.2014 of the High Court of Baluchistan, Quetta passed in CP No.332 of 2012) Mehmood Khan and others (In CP 1774/14) Mir Maqbool Ahmed Lehri (In CP 1783/14) Mir Muhammad Afzal and others (In CP 410-Q/14) … Petitioners Versus Government of Baluchistan and others (In CP 1774/14) Mir Muhammad Afzal and others (In CP 1783/14) Government of Baluchistan and others (In CP 410-Q/14) … Respondents For the petitioners Mr. Tariq Mehmood, Sr.ASC (Nos.1-3 in CP No.1774/14) (No.4 in CP No.1774/14) Mr. Ali Ahmed Kurd, ASC Mr. Tariq Aziz, AOR. (In CP 1783/14) Mr. Kamran Murtaza, ASC Syed Rifaqat Hussain Shah, AOR. (In 410-Q/14) Mr.Muhammad Qahir Shah, ASC For the respondent Not represented (in all cases) Date of hearing: 27.5.2015 ORDER MAQBOOL BAQAR, J.- The petitioners, in the above three petitions, have assailed the judgment dated 20.8.2014, in terms whereof a learned Division Bench of the High Court of Baluchistan, disposed of Constitution Petition No.332 of 2012 filed by petitioners in CPLA No.410-Q of 2004, whereby the said petitioners, inter alia, sought a declaration that order of allotment of land bearing Khasra No.2250/517, situated in Mahal Sirki Kalan Tappu Saddar, District Quetta in favour of one of the Respondent namely Sultan Ahmed (being respondent No.9 in the said petition) and its subsequent CP 1774, 1783 & 410-Q/14 2 transfer in favour of respondent Nos.10, 11 and 12, has been passed illegally and by misuse of authority, and to direct the concerned authority to allot the same to the petitioners, being the petitioners before us in CPLA No.410-Q of 2014. 2. The facts of the case, in brief, are that the land bearing Khasra No.517, measuring 6 rods and 36 poles situated in Mahal Sarki Kalan, Mouza Sirki, Tappu Saddar, Tehsil and District Quetta, owned by the predecessor-in-interest of the petitioner in CPLA No.410-Q of 2014 was acquired by the Government of Baluchistan under the Baluchistan Land Acquisition Ordinance 1979, for construction of a bridge over a railway track to connect Zarghoon Road and Sariab Road in Quetta. The transfer of the land in favour of the Government of Baluchistan was accordingly recorded in the revenue record. The overhead bridge was constructed by Quetta Development Authority (“QDA”), however, a portion of the aforesaid acquired land, measuring 30,492 sq.ft. (“the land”), which remained unutilized and was reserved for the future expansion of the bridge, more fully described in the first para of this order, was purportedly sold to Respondent-Sultan Ahmed through a purported sale deed dated 26.4.2007, purportedly executed by QDA in favour of Respondent-Sultan Ahmed. At the relevant time the petitioner Maqbool Ahmed Lehri was the Nazim, City District Government, in which capacity he held the post of Chairman QDA also. Neither was any advertisement placed by QDA as required in terms of clause (a) of sub-section (2) of section 113 of the Quetta Development Authority Ordinance, nor was the land offered to those from whom the same was acquired, before the purported sale. 3. However, before we proceed any further, it would be relevant to briefly record the history of the case; in fact, prior to acquiring the land through the purported sale deed, it was in the year CP 1774, 1783 & 410-Q/14 3 1987 that Respondent-Sultan Ahmed procured a purported allotment of the land from petitioner Maqbool Ahmed Lehri, while the later was Mayor Municipal Corporation Quetta (“MCQ”), and as such the purported lease deed was executed by the said petitioner in favour of the Respondent-Sultan Ahmed for a period of 30 years on 06.5.1990. For such allotment Respondent-Sultan Ahmed initially applied to the Minister for QDA/WASA Baluchistan, who sought comments from MCQ. The Municipal Engineer MCQ, though in his note stated that the ownership of the land is of QDA, yet recommended leasing out the land in favour of Respondent-Sultan Ahmed, and sought permission to allot/lease out the land and to execute such agreement in favour of Respondent-Sultan Ahmed. The petitioner Maqbool Lehri who, as noted above, was Mayor MCQ, endorsed the above for the approval of the Minister for QDA/WASA. Thereafter, respondent- Sultan Ahmed applied to the Chief Minister for allotment of the land for thirty years enabling him to establish and run a nursery, the Chief Minister, obliged by endorsing “Please allot for thirty years”. Whereafter, the allotment and lease as noted above were granted. The lease, as disclosed by MCQ in its written statement in suit No.979/1993, was however terminated on 19.4.1993. On the said very date, i.e. 19.4.1993, MCQ also initiated criminal proceedings under section 133 Cr.P.C. for resumption of possession of the land. Respondent-Sultan Ahmed thus, on the one hand, on 20.4.1993, filed the above noted suit in the Court of Civil Judge-I, Quetta for declaration and permanent injunction against the Administrator, MCQ, Municipal Magistrate, Illaqa Magistrate and the concerned SHO, in respect of the land in question, and on the other hand filed a Criminal Revision before the Additional Session Judge, Quetta. In his suit Respondent-Sultan Ahmed alleged that the defendants are attempting to dispossess him from the land. Upon knowledge of the CP 1774, 1783 & 410-Q/14 4 suit QDA joined the proceedings as defendant No.5. In their written statements the defendants denied Respondent-Sultan Ahmed’s claim over the land. MCQ in its written statement averred that the purported lease deed has been terminated on 19.4.1993, and that MCQ is not the owner of the land, and was not authorized to execute the purported lease, and further that the lease “is neither properly stamped nor registered as required under the law”, whereas QDA in its written statement claimed that the lease is “patently void”. The trial Court, after hearing the parties, through order dated 26.10.1995, held that admittedly QDA is the owner of the land and since the purported lease has been cancelled by the Administrator, MCQ on 19.3.1993, Respondent-Sultan Ahmed has no locus standi and his possession of the land is unauthorized, and dismissed the suit. Upon an appeal filed by Respondent-Sultan Ahmed on 8.5.1996 the dismissal order was set-aside and the suit was remanded to the trail Court. The aforesaid criminal revision was dismissed by Additional Sessions Judge on 30.11.1993. Through judgment dated 09.1.1994, Crl.Misc. Quashment Application filed by Respondent- Sultan Ahmed in the High Court of Baluchistan was also dismissed. Criminal Petition filed by Respondent-Sultan Ahmed against the said judgment before this Court was, on 23.11.1994, disposed of on the basis of a statement of the Additional Advocate General, that no proceedings under section 133 Cr.P.C. are pending against Respondent-Sultan Ahmed. 4. In his letter dated 29.6.1996 addressed to Chief Engineer/Director (Estate), QDA, Quetta, the Administrator MCQ conveyed to the latter that the propriety rights of the suit land does not belong to the MCQ and therefore any agreement executed by the Ex-Mayor MCQ with Respondent-Sultan Ahmed is of no legal effect and the same being void is not required to be cancelled. CP 1774, 1783 & 410-Q/14 5 5. Respondent-Sultan Ahmed was, through order dated 07.11.1997, allowed to withdraw the aforesaid suit with permission to file a fresh suit, the withdrawal was however allowed subject to payment of cost of Rs.25,000/-. He, however, did not file a fresh suit in respect of the action/decision impugned through the suit withdrawn. 6. Undettered by the above cancellation, Respondent- Sultan Ahmed in his pursuit to grab the suit land, after waiting for an opportune time, on 01.4.1997 submitted another application to the Chief Minister, where he concealed the termination of his purported allotment/lease and all the above noted subsequent events, and simply claimed that though the suit land was allotted to him for nursery by the former Minister Local Bodies through the former Mayor, MCQ in the year 1991 but some people are creating difficulties in his way and requested the Chief Minister to order allotment of the land, and for direction to the QDA to settle the price through negotiation with him. The then Chief Minister sought report in the matter. Unfortunately, the Chief Minister was not apprised of the correct legal and factual position in the matter, and on 28.9.1997, he passed an order as follow:- “This is an old case and the Authority has already given the approval for lease of land and settlement with the applicant. Now, since the applicant wants to buy the land, the Director General, QDA may settle the matter by negotiations with the applicant, keeping in view the rates of Commercial and other categories in mind.” However, pursuant to the above orders, the Chief Secretary, Baluchistan, through his note dated 29.9.1997, sought information regarding the legal claim of the Government over the land. The Secretary Local Government, instead of meeting the query, observed that the file was sent to the government by mistake and referred the CP 1774, 1783 & 410-Q/14 6 same to QDA “for necessary action”. Whereupon the Director (Estate) Commercial, QDA, suppressing all the crucial aspects of the matter as noted above, simply stated that the land in question is in possession of Respondent-Sultan Ahmed since 1991, and forwarded the aforesaid purported lease deed executed by the former Mayor, MCQ in favour of Respondent-Sultan Ahmed. Through letter dated 21.10.1997, Director General, QDA in purported compliance of the Chief Minister’s order dated 28.9.1997, called Respondent-Sultan Ahmed for negotiations. In the meanwhile, the so called prevailing market rates of the residential and commercial lands in the vicinity of the subject land were obtained by QDA through Deputy Commissioner, Quetta, who through his letter dated 28.11.1997, conveyed the rate of residential land in the vicinity as being Rs.200 per sq.ft and that the rates of such commercial lands ranges between Rs.200 to 500 per sq.ft. A summary was then prepared and submitted before the Chief Minister, Baluchistan saying that after negotiations with Respondent-Sultan Ahmed, the rates of the land have been agreed at Rs.400 per sq.ft for commercial portion and Rs.150 per sq.ft for residential portion. The Chief Minister, as noted by his Private Secretary on the relevant file on 6.4.1998, ordered that “a case for lease rent for 30 years at the rate of Rs.15,000/- per annum may be processed and re-submitted for perusal/order”. On 29.5.1998, the Chief Secretary, Baluchistan in his bid to save the land from being dolled out as above, ordered as follow:- “Please submit a summary to the Chief Minster pointing out the implications of this decision which will impact adversely on the QDA as the land is much too valuable to be leased out like that; and besides there is no precedent to return the acquired land paid for by public agency like QDA. Also please refer to Land Acquisition Act.” CP 1774, 1783 & 410-Q/14 7 7. However, through letter dated 20.8.1998, DG, QDA offered the price of the land @ Rs.450 per sq.ft for commercial portion and Rs.200 per sq.ft for residential portion, such portions having been earmarked by the Incharge Town Planning, QDA, and required Respondent-Sultan Ahmed to respond within a week’s time. It may be significant to note here that no where it is even mentioned as to when, how, in what manner, on what basis, under what law, rules and regulations and/or policy, and under what authority the land was bifurcated into commercial and residential categories. It is also not explained as to on what basis and under which criteria the sizes, location and demarcation of the two purported categories was affected. In response Respondent-Sultan Ahmed, through letter dated 31.8.1998, stated that the agreed rate being Rs.400 per sq.ft for commercial portion and Rs.150 per sq.ft for the residential area, the offer be amended accordingly. The matter of allotment was placed before the Governing Body, QDA in its meeting held on 01.1.1999, however, the Governing Body rejected the very proposal to sale and decided that:- “i) The land occupied illegally by Mr.Sultan Ahmed s/o Shadi Khan may be got vacated with the help of concerned authorities. ii) The construction of second phase of the bridge may be examined and report be submitted.” 8. Through letter dated 30.4.1999, DG, QDA informed Respondent-Sultan Ahmed of the above decision and that the aforesaid letter dated 20.8.1998 be treated as withdrawn. 9. However, the matter did not rest here, as Respondent- Sultan Ahmed, suppressing the above decision of the Governing Body and all the other adverse developments, and despite the fact that upon the above decision there remained no basis/offer (of whatever CP 1774, 1783 & 410-Q/14 8 worth same might have been), and thus there was absolutely no question of making any payment towards the land, through an undated letter requested the Chief Minister for an order directing the DG QDA to allow him to deposit 50% of the price of the land. The Chief Minister through letter dated 30.6.2003, directed that “the applicant be allowed to deposit the cost of the plot as per agreed rate”. It may be noted that the rates were purportedly agreed six years before the said order and that in the meanwhile the value of the land appreciated substantially. 10. However, still Respondent-Sultan Ahmed did not make any payment and wrote yet another undated letter to the Chief Minister stating that “unfortunately the applicant could not deposit the said cost of land”. The Chief Minister once again obliged the applicant, and on 23.8.2004, directed DG QDA, to grant permission to the applicant to deposit the price of the plot as “already agreed”. 11. A Summary dated 27.8.2004, was then submitted before the Chief Minister, which, inter alia, disclosed that Respondent- Sultan Ahmed, has through an application approached NAB and expressed his willingness to deposit the entire amount of the present market value of the land, and that in the event he is unable to make such payment, he shall surrender the land to QDA, whereupon the NAB sought comments from QDA and that QDA conveyed its no objection, subject to approval by its governing body, but Respondent- Sultan Ahmed surrendered the land to QDA. The summary placed before the Chief Minister two options, being (i) restoration of the offer made to Respondent-Sultan Ahmed earlier, or (ii) to sale the land at the prevailing market rate subject to the approval of the Governing Body QDA. The Chief Minister endorsed the following note on the summary:- CP 1774, 1783 & 410-Q/14 9 “para 5 to be definitely to be xxxxxxx [deleted] as proposed for xxxx [deleted] for restoration” 12. It was after a lapse of 17 months of the above, and only after the petitioner Maqbool Ahmed Lehri become Nazim, MCQ, as well as Chairman QDA, that the matter was purportedly placed before the Governing Body of the QDA, in its meeting held on 28.1.2006, which meeting was convened only for the approval of a revised budget, that the issue of the subject land was put before the Board by way of an “ex-agenda item” under the heading “Confirmation of orders of Chief Minister Baluchistan - land of Mr.Sultan Ahmed” and as per the purported minutes of the meeting, the board purportedly decided as follows:- “The house confirmed the directives of Hon’ble Chief Minister Baluchistan issued vide U.O.No.PS-CM/1- 1/2003/2078 dated 13.6.2003 & U.O. No.PS-CM/1- 1/2004 dated 01.9.2004 and also confirmed the letter No.2-395/93(QDA)E(C)/ 760-62 dated 18.9.2004 issued by QDA. It was further decided that the allottee may deposit the balance cost of land as per direction of the CM.” 13. Regarding the above meeting/proceedings, it is pointed out that it was the very first meeting under the chairmanship of petitioner Maqbool Ahmed Lehri. It is alleged that the members of the Governing Body who participated in the meeting stated before the NAB authorities that neither was any issue pertaining to the land/“ex-agenda item”, discussed in the said meeting nor was any such proposal/item approved. It is further contended that under the relevant rules, the minutes of the meeting of the Governing Body were/are supposed to be signed either by the Director Administration or by DG QDA, but the minutes in question have purportedly been singed by the Chairman, Maqbool Ahmed Lehri, the petitioner. It is CP 1774, 1783 & 410-Q/14 10 further pointed out, and as is also evident from the relevant extract of the minutes of the meeting, the earlier decision of the Governing Body rejecting the proposal of sale of land to Respondent-Sultan Ahmed and for getting it vacated and submitting a report for the expansion of the bridge was concealed from the Board. 14. The purported sale deed was then purportedly executed by QDA on 26.4.2007, however, since the same did not specify therein the land purportedly sold, a deed of rectification was sought to be executed. However, DG QDA through letter dated 13.2.2010 informed the concerned Sub-Registrar that the said deed of rectification has not been issued with his approval and is therefore not be entertained. He further cautioned the Sub-Registrar that “The sale has some doubts and objection which are being examined”. However, it seems that such deed of rectification had been registered by the time the above letter was sent. 15. As noted above, admittedly the land was owned neither by MCQ nor by QDA, and was/is owned by the Government of Baluchistan and therefore none of the above bodies was either competent or authorized to sale the land, even otherwise in terms of section 113 of the Quetta Development Authority Ordinance, 1978, which reads as follows:- “113. Power to dispose of land- (1) The Authority may retain, or may lease, well, exchange, rent or otherwise dispose of any land vested in or acquired by it under this Ordinance. (2) Whenever the Authority decides to lease or sell any land acquired by it under this Ordinance from any person, it shall- (a) give notice through advertisement in newspapers published in the Quetta City. (b) offer to the person or persons, from whom the land has been acquired, or their heirs, executors or administrators, a prior right to lease or purchase such land, at rate to be fixed by the Authority, if in its discretion it determines that such lease or sale is in the public interest.” CP 1774, 1783 & 410-Q/14 11 Firstly, it is an essential pre-requisite to determine as to whether or not the sale of any land vested in or acquired by QDA would be in the public interest, secondly, it is mandatory to publish notice of the proposed sale by QDA in the newspapers published in the city of Quetta, and thirdly, and in the foremost, it is essentially required that in case the land is an acquired land, it be first offered to the person(s) from whom the same has been acquired. However, as evident from the foregoing, none of the above essential statutory requirements were met in respect of the transactions in question. 16. It is also crucial to note that since admittedly the land was/is owned by the Government of Baluchistan, it was to be dealt with under and in terms of Baluchistan Land Lease Policy, 2000 (“the policy”), formulated in pursuance of sub-section (2) of Section 10 of the Colonization of Government Land Act, 1912, and published in the Baluchistan Gazette on 01.12.2000. Clause 4(2) of which policy mandates that “all state land falling within five miles of the limits of Municipal Committee/Municipal Corporation and within three miles of Town Committee will be reserved for further utilization”. The land being situated within the city of Quetta, thus fell under the above restriction/prohibition and was therefore not saleable at all. The land, as noted earlier, was part of the land acquired for the construction of a bridge and after construction of the first phase was reserved for the construction of second phase thereof, the above fact, as noted earlier, was also acknowledged by the Governing Body of the QDA in its meeting held on 01.4.1999 and thus, in view of the clause 3 (2) of the policy, which prescribes that land can only be leased provided it was not required for “public building, other public sector projects”, could not have been leased out at all. 17. Furthermore, even the lease permissible under the policy, can, in terms of sub-clause (1) of clause 5 of the Policy, be CP 1774, 1783 & 410-Q/14 12 granted for a period of thirty years only. Rates of the yearly rent money, as stipulated by sub-clause (2) of clause 5 of the Policy, is to be determined by a Committee, keeping in view the market value/performance. The policy in terms of sub-clause (3) of clause 5 further requires that “the highest standard of transparency will be ensured” and “after giving due publically” and further that the lease money is to be charged “as per market value or through the process of auction”. In terms of terms of clause 10 of the policy there is a clear prohibition against assignment/sub-letting or transfer of the lease land or any part thereof by the lessee. The authority for grant of lease as designated through clause 16 of the policy, is “Collector as defined under the Land Revenue Act, 1967”. However, as evident from the foregoing narration of events, every single provision of the policy has been trampled in the present case. 18. The land, as noted earlier, was compulsorily acquired by the Government of Baluchistan for a public purpose, “public purpose” having been exempted from the bar against compulsory acquisition as prescribed by Article 24 of the Constitution, which provision guarantees protection of propriety rights in accordance with law, and therefore, not utilizing the land for the public purpose and selling the same to private person(s) is violative of the object, spirit, principle and the purpose of the provisions of Article 24 of the Constitution, in view whereof, the land, even in case the same would not have been required for any public purpose, and even otherwise could have been lawfully sold, the person(s) from whom the same was acquired ought to have been provided an opportunity to participate in the process so as to enable them to make an offer for its purchase in accordance with law. The sale in question is, therefore, violative of the mandate of the constitution also. CP 1774, 1783 & 410-Q/14 13 19. From the narration of the facts and events herein above, it can been seen that not only the policy was violated and contravened but prima facie the subject transactions were affected through fraudulent machinations. The suppression of the termination and cancellation of the purported lease and rejection of proposal for sale by the Governing Body QDA, have been spelt out from the above narration quite clearly. It has not been explained as to how, why, under what law, rule and regulations or policy, and under what authority the land reserved for a public sector project was designated/bifurcated into/as “Residential” and “Commercial” categories, and as to under what criteria and on what basis the area and locations/dimensions of such purported categories were determined/affected. 20. Though illegally, however, the Chief Minister Baluchistan clearly directed that “the case for lease land for 30 years at the rate of Rs.15000 per annum may be processed” the purported sale is therefore also contrary to and violative of the order of the Chief Minister. 21. As per the NAB, the members of the Governing Body, who participated in the meeting dated 01.4.1999, disclosed before the NAB that neither they had any notice of the issue pertaining to the land being taken up in the aforesaid meeting, nor the matter/issue was in fact taken up or decided, as wrongly mentioned in the purported minutes of the meeting. It is further alleged that the DG QDA who also is a member of the Governing Body QDA, though his letter dated 29.9.2006, confirmed that the issue of the land was not discussed in the meeting. The involvement, interest and enthusiasm of the petitioner Maqbool Ahmed Lehri in this matter from the very beginning can been seen from the facts that it was him who as Mayor MCQ, forwarded the recommendation of the Municipal Engineer for CP 1774, 1783 & 410-Q/14 14 leasing the land in favour of Respondent-Sultan Ahmed and for executing the agreement accordingly, for the approval of the concerned Minister, and that, as evident from the approval note itself, the approval was granted on Lehri’s recommendation. And thereafter the purported allotment letter and the purported lease deed was also executed by him. Furthermore in the process of the subsequent transaction, i.e. the execution of the sale deed, the matter remained pending for about seventeen (17) months and was purportedly placed before the Governing Body, QDA, immediately upon petitioner Maqbool Ahmed Lehri assuming the office of the Chairman QDA, by way of “ex-agenda item”, where purported approval of the sale was purportedly obtained, by suppressing the adverse decision made by the Governing Body, QDA earlier. The above purported approval and the consequential purported sale was in conflict with the earlier decision of the QDA and MCQ and their stance in the relevant proceedings before the various courts. The land was doled out at the rate purportedly assessed seven years earlier, and to further unduly favour the beneficiary larger part of the land was designated as residential to which category lower rate was applied. The above misuse of the authority, prima facie appears, was not just to benefit Respondent-Sultan Ahmed, the purported allottee, but was so exercised for the benefit of a real brother and two paternal cousins of petitioner Maqbool Ahmed Lehri in whose favour the land was subsequently transferred, through an attorney of Respondent-Sultan Ahmed, which attorney also is a cousin of petitioner Maqbool Ahmed Lehri. Furthermore, as noted earlier, the land was purportedly sold to Respondent-Sultan Ahmed on 26.4.2007, however, the above power of attorney was executed on 17.4.2006, a year before the purported sale. The execution of the Power of Attorney clearly demonstrates strong confidence of the beneficiary that the land shall surely be CP 1774, 1783 & 410-Q/14 15 allotted to Respondent-Sultan Ahmed, otherwise there was no question of appointing an attorney to deal with something that did not exist. Furthermore, it seems that the power of attorney was obtained to secure the interest of the real beneficiaries. In the NAB reference, it has been alleged that Respondent-Sultan Ahmed, being a small time motor mechanic, had no funds to pay for the land and had in fact acted as a front man for the petitioner Maqbool Ahmed Lehri. Reference in this regard has been made to the statement recorded by respondent Sultan Ahmed before the learned High Court of Baluchistan in Constitution Petition No.332 of 2012. In this regard the impugned judgment has also noted, that the various signatures said to be inscribed by Respondent-Sultan Ahmed on the applications made by him to the Chief Minister from time to time, neither tallies with each other, nor with his admitted signature on record. However, the question whether Respondent-Sultan Ahmed acted as a front man for the petitioner Maqbool Ahmed Lehri, and the other above noted issues ancillary thereto, can only be determined after recording of evidence by the NAB Court. 22. In the case of Al-Shafeeq Housing Society, Hyderabad v. Pakistan Medical Association, Karachi and others (PLD 1992 SC 113), where the questions of restoration of the respondent’s allotment and also of the legality and validity of the appellant’s allotment were involved. This Court, whilst observing that Government, or for that matter the Chief Minister had no power to either annul the respondent’s allotment or to make allotment to the appellant, which was so done in that case, repelled the objection to the maintainability of the petition before the High Court and held such questions to be a question pertaining to statutory duty and dismissed the appeal. In the preset case also, as can been seen from the above discussion, the statutory provisions have been violated, and in fact the allotment has CP 1774, 1783 & 410-Q/14 16 been made in violation of the constitutional mandate also. The allotment in question being wholly illegal, incompetent and void has rightly been declared and treated by the learned Division Bench as such, and as a natural and legal consequence thereof has rightly ordered cancellation of the purported sale deeds of the land in favour of the subsequent lessees, being petitioners No.1 to 3, in CP 1774/14. Further more since the land has been acquired for a public purpose i.e. construction of a bridge and is now reserved for expansion of the bridge constructed on a portion of the acquired land, cannot be leased/sold to any private individual, and/or for any private purpose/commercial venture or for any illegal and undue enrichment, such being the mandate of Baluchistan Land lease Policy 2000. Request of the petitioners in CPLA 410-Q of 2014 for an order directing allotment of the land to the said petitioners was thus rightly declined. 23. Since the purported sale of the subject land has been declared illegal and cancellation of such sale/allotment has been ordered as above, we would direct the QDA to refund the consideration amount in respect of the said transaction to Sultan Ahmed. 24. In view of the foregoing, the petitions are dismissed and leave refused. Judge Judge Judge Announced in open Court on __________ at Islamabad Judge APPROVED FOR REPORTING Aamir Sh.

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{'id': 'C.P.L.A.1774_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE GULZAR AHMED MR. JUSTICE MAQBOOL BAQAR CIVIL PETITIONS NOS.1774, 1783 & 410-Q OF 2015 (Against the judgment dated 20.8.2014 of the High Court of Baluchistan, Quetta passed in CP No.332 of 2012) Mehmood Khan and others (In CP 1774/14) Mir Maqbool Ahmed Lehri (In CP 1783/14) Mir Muhammad Afzal and others (In CP 410-Q/14) … Petitioners Versus Government of Baluchistan and others (In CP 1774/14) Mir Muhammad Afzal and others (In CP 1783/14) Government of Baluchistan and others (In CP 410-Q/14) … Respondents For the petitioners Mr. Tariq Mehmood, Sr.ASC (Nos.1-3 in CP No.774/14) (No.4 in CP No.774/14) Mr. Ali Ahmed Kurd, ASC Mr. Tariq Aziz, AOR. (In CP 1783/14) Mr. Kamran Murtaza, ASC Syed Rifaqat Hussain Shah, AOR. (In 410-Q/14) Mr.Muhammad Qahir Shah, ASC For the respondent Not represented (in all cases) Date of hearing: 27.5.2015 ORDER MAQBOOL BAQAR, J.- The petitioners, in the above three petitions, have assailed the judgment dated 20.8.2014, in terms whereof a learned Division Bench of the High Court of Baluchistan, disposed of Constitution Petition No.332 of 2012 filed by petitioners in CPLA No.410-Q of 2004, whereby the said petitioners, inter alia, sought a declaration that order of allotment of land bearing Khasra No.2250/517, situated in Mahal Sirki Kalan Tappu Saddar, District Quetta in favour of one of the CP 1774, 1783 & 410-Q/14 2 Respondent namely Sultan Ahmed (being respondent No.9 in the said petition) and its subsequent transfer in favour of respondent Nos.10, 11 and 12, has been passed illegally and by misuse of authority, and to direct the concerned authority to allot the same to the petitioners, being the petitioners before us in CPLA No.410- Q of 2014. 2. The facts of the case, in brief, are that the land bearing Khasra No.517, measuring 6 rods and 36 poles situated in Mahal Sarki Kalan, Mouza Sirki, Tappu Saddar, Tehsil and District Quetta, owned by the predecessor-in-interest of the petitioner in CPLA No.410-Q of 2014 was acquired by the Government of Baluchistan under the Baluchistan Land Acquisition Ordinance 1979, for construction of a bridge over a railway track to connect Zarghoon Road and Sariab Road in Quetta. The transfer of the land in favour of the Government of Baluchistan was accordingly recorded in the revenue record. The overhead bridge was constructed by Quetta Development Authority (“QDA”), however, a portion of the aforesaid acquired land, measuring 30,492 sq.ft. (“the land”), which remained unutilized and was reserved for the future expansion of the bridge, more fully described in the first para of this order, was purportedly sold to Respondent-Sultan Ahmed through a purported sale deed dated 26.4.2007, purportedly executed by QDA in favour of Respondent-Sultan Ahmed. At the relevant time the petitioner Maqbool Ahmed Lehri was the Nazim, City District Government, in which capacity he held the post of Chairman QDA also. Neither was any advertisement placed by QDA as required in terms of clause (a) of sub-section (2) of section 113 of the Quetta Development Authority Ordinance, nor was the land offered to those from whom the same was acquired, before the purported sale. CP 1774, 1783 & 410-Q/14 3 3. However, before we proceed any further, it would be relevant to briefly record the history of the case; in fact, prior to acquiring the land through the purported sale deed, it was in the year 1987 that Respondent-Sultan Ahmed procured a purported allotment of the land from petitioner Maqbool Ahmed Lehri, while the later was Mayor Municipal Corporation Quetta (“MCQ”), and as such the purported lease deed was executed by the said petitioner in favour of the Respondent-Sultan Ahmed for a period of 30 years on 06.5.1990. For such allotment Respondent-Sultan Ahmed initially applied to the Minister for QDA/WASA Baluchistan, who sought comments from MCQ. The Municipal Engineer MCQ, though in his note stated that the ownership of the land is of QDA, yet recommended leasing out the land in favour of Respondent- Sultan Ahmed, and sought permission to allot/lease out the land and to execute such agreement in favour of Respondent-Sultan Ahmed. The petitioner Maqbool Lehri who, as noted above, was Mayor MCQ, endorsed the above for the approval of the Minister for QDA/WASA. Thereafter, respondent-Sultan Ahmed applied to the Chief Minister for allotment of the land for thirty years enabling him to establish and run a nursery, the Chief Minister, obliged by endorsing “Please allot for thirty years”. Whereafter, the allotment and lease as noted above were granted. The lease, as disclosed by MCQ in its written statement in suit No.979/1993, was however terminated on 19.4.1993. On the said very date, i.e. 19.4.1993, MCQ also initiated criminal proceedings under section 133 Cr.P.C. for resumption of possession of the land. Respondent-Sultan Ahmed thus, on the one hand, on 20.4.1993, filed the above noted suit in the Court of Civil Judge-I, Quetta for declaration and permanent injunction against the Administrator, MCQ, Municipal Magistrate, Illaqa Magistrate and the concerned SHO, in respect of CP 1774, 1783 & 410-Q/14 4 the land in question, and on the other hand filed a Criminal Revision before the Additional Session Judge, Quetta. In his suit Respondent-Sultan Ahmed alleged that the defendants are attempting to dispossess him from the land. Upon knowledge of the suit QDA joined the proceedings as defendant No.5. In their written statements the defendants denied Respondent-Sultan Ahmed’s claim over the land. MCQ in its written statement averred that the purported lease deed has been terminated on 19.4.1993, and that MCQ is not the owner of the land, and was not authorized to execute the purported lease, and further that the lease “is neither properly stamped nor registered as required under the law”, whereas QDA in its written statement claimed that the lease is “patently void”. The trial Court, after hearing the parties, through order dated 26.10.1995, held that admittedly QDA is the owner of the land and since the purported lease has been cancelled by the Administrator, MCQ on 19.3.1993, Respondent-Sultan Ahmed has no locus standi and his possession of the land is unauthorized, and dismissed the suit. Upon an appeal filed by Respondent- Sultan Ahmed on 8.5.1996 the dismissal order was set-aside and the suit was remanded to the trail Court. The aforesaid criminal revision was dismissed by Additional Sessions Judge on 30.11.1993. Through judgment dated 09.1.1994, Crl.Misc. Quashment Application filed by Respondent-Sultan Ahmed in the High Court of Baluchistan was also dismissed. Criminal Petition filed by Respondent-Sultan Ahmed against the said judgment before this Court was, on 23.11.1994, disposed of on the basis of a statement of the Additional Advocate General, that no proceedings under section 133 Cr.P.C. are pending against Respondent-Sultan Ahmed. CP 1774, 1783 & 410-Q/14 5 4. In his letter dated 29.6.1996 addressed to Chief Engineer/Director (Estate), QDA, Quetta, the Administrator MCQ conveyed to the latter that the propriety rights of the suit land does not belong to the MCQ and therefore any agreement executed by the Ex-Mayor MCQ with Respondent-Sultan Ahmed is of no legal effect and the same being void is not required to be cancelled. 5. Respondent-Sultan Ahmed was, through order dated 07.11.1997, allowed to withdraw the aforesaid suit with permission to file a fresh suit, the withdrawal was however allowed subject to payment of cost of Rs.25,000/-. He, however, did not file a fresh suit in respect of the action/decision impugned through the suit withdrawn. 6. Undettered by the above cancellation, Respondent- Sultan Ahmed in his pursuit to grab the suit land, after waiting for an opportune time, on 01.4.1997 submitted another application to the Chief Minister, where he concealed the termination of his purported allotment/lease and all the above noted subsequent events, and simply claimed that though the suit land was allotted to him for nursery by the former Minister Local Bodies through the former Mayor, MCQ in the year 1991 but some people are creating difficulties in his way and requested the Chief Minister to order allotment of the land, and for direction to the QDA to settle the price through negotiation with him. The then Chief Minister sought report in the matter. Unfortunately, the Chief Minister was not apprised of the correct legal and factual position in the matter, and on 28.9.1997, he passed an order as follow:- “This is an old case and the Authority has already given the approval for lease of land and settlement with the applicant. Now, since the applicant wants to buy the land, the Director General, QDA may settle the matter by negotiations with the applicant, keeping in CP 1774, 1783 & 410-Q/14 6 view the rates of Commercial and other categories in mind.” However, pursuant to the above orders, the Chief Secretary, Baluchistan, through his note dated 29.9.1997, sought information regarding the legal claim of the Government over the land. The Secretary Local Government, instead of meeting the query, observed that the file was sent to the government by mistake and referred the same to QDA “for necessary action”. Whereupon the Director (Estate) Commercial, QDA, suppressing all the crucial aspects of the matter as noted above, simply stated that the land in question is in possession of Respondent-Sultan Ahmed since 1991, and forwarded the aforesaid purported lease deed executed by the former Mayor, MCQ in favour of Respondent- Sultan Ahmed. Through letter dated 21.10.1997, Director General, QDA in purported compliance of the Chief Minister’s order dated 28.9.1997, called Respondent-Sultan Ahmed for negotiations. In the meanwhile, the so called prevailing market rates of the residential and commercial lands in the vicinity of the subject land were obtained by QDA through Deputy Commissioner, Quetta, who through his letter dated 28.11.1997, conveyed the rate of residential land in the vicinity as being Rs.200 per sq.ft and that the rates of such commercial lands ranges between Rs.200 to 500 per sq.ft. A summary was then prepared and submitted before the Chief Minister, Baluchistan saying that after negotiations with Respondent-Sultan Ahmed, the rates of the land have been agreed at Rs.400 per sq.ft for commercial portion and Rs.150 per sq.ft for residential portion. The Chief Minister, as noted by his Private Secretary on the relevant file on 6.4.1998, ordered that “a case for lease rent for 30 years at the rate of Rs.15,000/- per annum may be processed and re-submitted for perusal/order”. On 29.5.1998, the CP 1774, 1783 & 410-Q/14 7 Chief Secretary, Baluchistan in his bid to save the land from being dolled out as above, ordered as follow:- “Please submit a summary to the Chief Minster pointing out the implications of this decision which will impact adversely on the QDA as the land is much too valuable to be leased out like that; and besides there is no precedent to return the acquired land paid for by public agency like QDA. Also please refer to Land Acquisition Act.” 7. However, through letter dated 20.8.1998, DG, QDA offered the price of the land @ Rs.450 per sq.ft for commercial portion and Rs.200 per sq.ft for residential portion, such portions having been earmarked by the Incharge Town Planning, QDA, and required Respondent-Sultan Ahmed to respond within a week’s time. It may be significant to note here that no where it is even mentioned as to when, how, in what manner, on what basis, under what law, rules and regulations and/or policy, and under what authority the land was bifurcated into commercial and residential categories. It is also not explained as to on what basis and under which criteria the sizes, location and demarcation of the two purported categories was affected. In response Respondent-Sultan Ahmed, through letter dated 31.8.1998, stated that the agreed rate being Rs.400 per sq.ft for commercial portion and Rs.150 per sq.ft for the residential area, the offer be amended accordingly. The matter of allotment was placed before the Governing Body, QDA in its meeting held on 01.1.1999, however, the Governing Body rejected the very proposal to sale and decided that:- “i) The land occupied illegally by Mr.Sultan Ahmed s/o Shadi Khan may be got vacated with the help of concerned authorities. CP 1774, 1783 & 410-Q/14 8 ii) The construction of second phase of the bridge may be examined and report be submitted.” 8. Through letter dated 30.4.1999, DG, QDA informed Respondent-Sultan Ahmed of the above decision and that the aforesaid letter dated 20.8.1998 be treated as withdrawn. 9. However, the matter did not rest here, as Respondent- Sultan Ahmed, suppressing the above decision of the Governing Body and all the other adverse developments, and despite the fact that upon the above decision there remained no basis/offer (of whatever worth same might have been), and thus there was absolutely no question of making any payment towards the land, through an undated letter requested the Chief Minister for an order directing the DG QDA to allow him to deposit 50% of the price of the land. The Chief Minister through letter dated 30.6.2003, directed that “the applicant be allowed to deposit the cost of the plot as per agreed rate”. It may be noted that the rates were purportedly agreed six years before the said order and that in the meanwhile the value of the land appreciated substantially. 10. However, still Respondent-Sultan Ahmed did not make any payment and wrote yet another undated letter to the Chief Minister stating that “unfortunately the applicant could not deposit the said cost of land”. The Chief Minister once again obliged the applicant, and on 23.8.2004, directed DG QDA, to grant permission to the applicant to deposit the price of the plot as “already agreed”. 11. A Summary dated 27.8.2004, was then submitted before the Chief Minister, which, inter alia, disclosed that Respondent-Sultan Ahmed, has through an application approached NAB and expressed his willingness to deposit the CP 1774, 1783 & 410-Q/14 9 entire amount of the present market value of the land, and that in the event he is unable to make such payment, he shall surrender the land to QDA, whereupon the NAB sought comments from QDA and that QDA conveyed its no objection, subject to approval by its governing body, but Respondent-Sultan Ahmed surrendered the land to QDA. The summary placed before the Chief Minister two options, being (i) restoration of the offer made to Respondent- Sultan Ahmed earlier, or (ii) to sale the land at the prevailing market rate subject to the approval of the Governing Body QDA. The Chief Minister endorsed the following note on the summary:- “para 5 to be definitely to be xxxxxxx [deleted] as proposed for xxxx [deleted] for restoration” 12. It was after a lapse of 17 months of the above, and only after the petitioner Maqbool Ahmed Lehri become Nazim, MCQ, as well as Chairman QDA, that the matter was purportedly placed before the Governing Body of the QDA, in its meeting held on 28.1.2006, which meeting was convened only for the approval of a revised budget, that the issue of the subject land was put before the Board by way of an “ex-agenda item” under the heading “Confirmation of orders of Chief Minister Baluchistan - land of Mr.Sultan Ahmed” and as per the purported minutes of the meeting, the board purportedly decided as follows:- “The house confirmed the directives of Hon’ble Chief Minister Baluchistan issued vide U.O.No.PS- CM/1-1/2003/2078 dated 13.6.2003 & U.O. No.PS-CM/1-1/2004 dated 01.9.2004 and also confirmed the letter No.2-395/93(QDA)E(C)/ 760- 62 dated 18.9.2004 issued by QDA. It was further decided that the allottee may deposit the balance cost of land as per direction of the CM.” CP 1774, 1783 & 410-Q/14 10 13. Regarding the above meeting/proceedings, it is pointed out that it was the very first meeting under the chairmanship of petitioner Maqbool Ahmed Lehri. It is alleged that the members of the Governing Body who participated in the meeting stated before the NAB authorities that neither was any issue pertaining to the land/“ex-agenda item”, discussed in the said meeting nor was any such proposal/item approved. It is further contended that under the relevant rules, the minutes of the meeting of the Governing Body were/are supposed to be signed either by the Director Administration or by DG QDA, but the minutes in question have purportedly been singed by the Chairman, Maqbool Ahmed Lehri, the petitioner. It is further pointed out, and as is also evident from the relevant extract of the minutes of the meeting, the earlier decision of the Governing Body rejecting the proposal of sale of land to Respondent-Sultan Ahmed and for getting it vacated and submitting a report for the expansion of the bridge was concealed from the Board. 14. The purported sale deed was then purportedly executed by QDA on 26.4.2007, however, since the same did not specify therein the land purportedly sold, a deed of rectification was sought to be executed. However, DG QDA through letter dated 13.2.2010 informed the concerned Sub-Registrar that the said deed of rectification has not been issued with his approval and is therefore not be entertained. He further cautioned the Sub- Registrar that “The sale has some doubts and objection which are being examined”. However, it seems that such deed of rectification had been registered by the time the above letter was sent. 15. As noted above, admittedly the land was owned neither by MCQ nor by QDA, and was/is owned by the Government of Baluchistan and therefore none of the above bodies CP 1774, 1783 & 410-Q/14 11 was either competent or authorized to sale the land, even otherwise in terms of section 113 of the Quetta Development Authority Ordinance, 1978, which reads as follows:- “113. Power to dispose of land- (1) The Authority may retain, or may lease, well, exchange, rent or otherwise dispose of any land vested in or acquired by it under this Ordinance. (2) Whenever the Authority decides to lease or sell any land acquired by it under this Ordinance from any person, it shall- (a) give notice through advertisement in newspapers published in the Quetta City. (b) offer to the person or persons, from whom the land has been acquired, or their heirs, executors or administrators, a prior right to lease or purchase such land, at rate to be fixed by the Authority, if in its discretion it determines that such lease or sale is in the public interest.” Firstly, it is an essential pre-requisite to determine as to whether or not the sale of any land vested in or acquired by QDA would be in the public interest, secondly, it is mandatory to publish notice of the proposed sale by QDA in the newspapers published in the city of Quetta, and thirdly, and in the foremost, it is essentially required that in case the land is an acquired land, it be first offered to the person(s) from whom the same has been acquired. However, as evident from the foregoing, none of the above essential statutory requirements were met in respect of the transactions in question. 16. It is also crucial to note that since admittedly the land was/is owned by the Government of Baluchistan, it was to be dealt with under and in terms of Baluchistan Land Lease Policy, 2000 (“the policy”), formulated in pursuance of sub-section (2) of Section 10 of the Colonization of Government Land Act, 1912, and published in the Baluchistan Gazette on 01.12.2000. Clause 4(2) of which policy mandates that “all state land falling within five miles of the limits of Municipal Committee/Municipal Corporation and within three miles of Town Committee will be reserved for CP 1774, 1783 & 410-Q/14 12 further utilization”. The land being situated within the city of Quetta, thus fell under the above restriction/prohibition and was therefore not saleable at all. The land, as noted earlier, was part of the land acquired for the construction of a bridge and after construction of the first phase was reserved for the construction of second phase thereof, the above fact, as noted earlier, was also acknowledged by the Governing Body of the QDA in its meeting held on 01.4.1999 and thus, in view of the clause 3 (2) of the policy, which prescribes that land can only be leased provided it was not required for “public building, other public sector projects”, could not have been leased out at all. 17. Furthermore, even the lease permissible under the policy, can, in terms of sub-clause (1) of clause 5 of the Policy, be granted for a period of thirty years only. Rates of the yearly rent money, as stipulated by sub-clause (2) of clause 5 of the Policy, is to be determined by a Committee, keeping in view the market value/performance. The policy in terms of sub-clause (3) of clause 5 further requires that “the highest standard of transparency will be ensured” and “after giving due publically” and further that the lease money is to be charged “as per market value or through the process of auction”. In terms of terms of clause 10 of the policy there is a clear prohibition against assignment/sub-letting or transfer of the lease land or any part thereof by the lessee. The authority for grant of lease as designated through clause 16 of the policy, is “Collector as defined under the Land Revenue Act, 1967”. However, as evident from the foregoing narration of events, every single provision of the policy has been trampled in the present case. 18. The land, as noted earlier, was compulsorily acquired by the Government of Baluchistan for a public purpose, “public CP 1774, 1783 & 410-Q/14 13 purpose” having been exempted from the bar against compulsory acquisition as prescribed by Article 24 of the Constitution, which provision guarantees protection of propriety rights in accordance with law, and therefore, not utilizing the land for the public purpose and selling the same to private person(s) is violative of the object, spirit, principle and the purpose of the provisions of Article 24 of the Constitution, in view whereof, the land, even in case the same would not have been required for any public purpose, and even otherwise could have been lawfully sold, the person(s) from whom the same was acquired ought to have been provided an opportunity to participate in the process so as to enable them to make an offer for its purchase in accordance with law. The sale in question is, therefore, violative of the mandate of the constitution also. 19. From the narration of the facts and events herein above, it can been seen that not only the policy was violated and contravened but prima facie the subject transactions were affected through fraudulent machinations. The suppression of the termination and cancellation of the purported lease and rejection of proposal for sale by the Governing Body QDA, have been spelt out from the above narration quite clearly. It has not been explained as to how, why, under what law, rule and regulations or policy, and under what authority the land reserved for a public sector project was designated/bifurcated into/as “Residential” and “Commercial” categories, and as to under what criteria and on what basis the area and locations/dimensions of such purported categories were determined/affected. 20. Though illegally, however, the Chief Minister Baluchistan clearly directed that “the case for lease land for 30 years at the rate of Rs.15000 per annum may be processed” the CP 1774, 1783 & 410-Q/14 14 purported sale is therefore also contrary to and violative of the order of the Chief Minister. 21. As per the NAB, the members of the Governing Body, who participated in the meeting dated 01.4.1999, disclosed before the NAB that neither they had any notice of the issue pertaining to the land being taken up in the aforesaid meeting, nor the matter/issue was in fact taken up or decided, as wrongly mentioned in the purported minutes of the meeting. It is further alleged that the DG QDA who also is a member of the Governing Body QDA, though his letter dated 29.9.2006, confirmed that the issue of the land was not discussed in the meeting. The involvement, interest and enthusiasm of the petitioner Maqbool Ahmed Lehri in this matter from the very beginning can been seen from the facts that it was him who as Mayor MCQ, forwarded the recommendation of the Municipal Engineer for leasing the land in favour of Respondent-Sultan Ahmed and for executing the agreement accordingly, for the approval of the concerned Minister, and that, as evident from the approval note itself, the approval was granted on Lehri’s recommendation. And thereafter the purported allotment letter and the purported lease deed was also executed by him. Furthermore in the process of the subsequent transaction, i.e. the execution of the sale deed, the matter remained pending for about seventeen (17) months and was purportedly placed before the Governing Body, QDA, immediately upon petitioner Maqbool Ahmed Lehri assuming the office of the Chairman QDA, by way of “ex-agenda item”, where purported approval of the sale was purportedly obtained, by suppressing the adverse decision made by the Governing Body, QDA earlier. The above purported approval and the consequential purported sale was in conflict with the earlier decision of the QDA and MCQ and their stance in the CP 1774, 1783 & 410-Q/14 15 relevant proceedings before the various courts. The land was doled out at the rate purportedly assessed seven years earlier, and to further unduly favour the beneficiary larger part of the land was designated as residential to which category lower rate was applied. The above misuse of the authority, prima facie appears, was not just to benefit Respondent-Sultan Ahmed, the purported allottee, but was so exercised for the benefit of a real brother and two paternal cousins of petitioner Maqbool Ahmed Lehri in whose favour the land was subsequently transferred, through an attorney of Respondent-Sultan Ahmed, which attorney also is a cousin of petitioner Maqbool Ahmed Lehri. Furthermore, as noted earlier, the land was purportedly sold to Respondent-Sultan Ahmed on 26.4.2007, however, the above power of attorney was executed on 17.4.2006, a year before the purported sale. The execution of the Power of Attorney clearly demonstrates strong confidence of the beneficiary that the land shall surely be allotted to Respondent- Sultan Ahmed, otherwise there was no question of appointing an attorney to deal with something that did not exist. Furthermore, it seems that the power of attorney was obtained to secure the interest of the real beneficiaries. In the NAB reference, it has been alleged that Respondent-Sultan Ahmed, being a small time motor mechanic, had no funds to pay for the land and had in fact acted as a front man for the petitioner Maqbool Ahmed Lehri. Reference in this regard has been made to the statement recorded by respondent Sultan Ahmed before the learned High Court of Baluchistan in Constitution Petition No.332 of 2012. In this regard the impugned judgment has also noted, that the various signatures said to be inscribed by Respondent-Sultan Ahmed on the applications made by him to the Chief Minister from time to time, neither tallies with each other, nor with his admitted CP 1774, 1783 & 410-Q/14 16 signature on record. However, the question whether Respondent- Sultan Ahmed acted as a front man for the petitioner Maqbool Ahmed Lehri, and the other above noted issues ancillary thereto, can only be determined after recording of evidence by the NAB Court. 22. In the case of Al-Shafeeq Housing Society, Hyderabad v. Pakistan Medical Association, Karachi and 5 others, (1992 SC 113), where the questions of restoration of the respondent’s allotment and also of the legality and validity of the appellant’s allotment were involved. This Court, whilst observing that Government, or for that matter the Chief Minister had no power to either annul the respondent’s allotment or to make allotment to the appellant, which was so done in that case, repelled the objection to the maintainability of the petition before the High Court and held such questions to be a question pertaining to statutory duty and dismissed the appeal. In the preset case also, as can been seen from the above discussion, the statutory provisions have been violated, and in fact the allotment has been made in violation of the constitutional mandate also. The allotment in question being wholly illegal, incompetent and void has rightly been declared and treated by the learned Division Bench as such, and as a natural and legal consequence thereof has rightly ordered cancellation of the purported sale deeds of the land in favour of the subsequent lessees, being petitioners No.1 to 3, in CP 1774/14. Further more since the land has been acquired for a public purpose i.e. construction of a bridge and is now reserved for expansion of the bridge constructed on a portion of the acquired land, cannot be leased/sold to any private individual, and/or for any private purpose/commercial venture or for any illegal and undue enrichment, such being the mandate of CP 1774, 1783 & 410-Q/14 17 Baluchistan Land lease Policy 2000. Request of the petitioners in CPLA 410-Q of 2014 for an order directing allotment of the land to the said petitioners was thus rightly declined. 23. In view of the foregoing, the petitions are dismissed and leave refused. Judge Judge Judge Islamabad the 27th May 2015 Aamir Sh. APPROVED FOR REPORTING

{'id': 'C.P.L.A.1774_2015.pdf', 'url': ''}

{'id': 'C.P.L.A.1774_2015.pdf', 'url': ''}

SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Sayyed Mazahar Ali Akbar Naqvi Civil Petition No.18-P of 2021 [Against the judgments dated 13.11.2020, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Service Appeal No.880/2018] Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others. … Petitioner(s) Versus Hizbullah Khan and another. …Respondent(s) For the Petitioner(s) : Mr. Zahid Yousaf Qureshi, Additional Advocate General, KP Asad ud Din, Asif Jan, Superintendents Javaid Maqbool Butt, Incharge Litigation, Agriculture Department, KP For Respondent No.1 : Mr. Mukhtar Ahmed Maneri, ASC Date of Hearing : 08.06.2021 O R D E R Gulzar Ahmed, CJ.— Facts of the matter are that respondent No.1 (the respondent) was promoted to the post of Senior Scale Stenographer (BPS-16) on 25.05.2009 and his name appeared at Serial No.1 of the seniority list. The case of the respondent was twice submitted for promotion to the post of Superintendent (BPS-17) but he was not considered for promotion. The respondent filed departmental appeal, which was responded that his case is kept pending till finalization of new service rules, however, at the same time junior officials of the department were promoted to the post of Superintendent (BPS-17). The respondent filed service appeal before the Khyber Pakhtunkhwa Service Civil Petition No.18-P of 2021 - 2 - Tribunal, Peshawar (the Tribunal), which by the impugned judgment dated 13.11.2020 was allowed and the petitioners were directed to process the case of the respondent for ante-dated promotion from the date when his case was first considered for promotion with all back benefits accrued to him. 2. We have heard the learned Additional Advocate General, KP (AAG) and have gone through the record of the case. 4. Learned counsel appearing for the respondent has supported the impugned judgment. 5. It is admitted that the respondent-Hizbullah’s case for promotion to the post of Superintendent (BPS-17) was put up twice through working-papers dated 16.08.2016 and 30.12.2016. In both the working-papers the name of respondent appeared at Serial No.1 on the basis of the final seniority list dated 06.01.2016 of Senior Scale Stenographers (BPS-16), where his name appeared at Serial No.1. What we note is that respondent was not informed about the fate of his promotion by the department. It was only after he filed the departmental appeal dated 26.10.2017, which was replied vide letter dated 14.12.2017, the reason was given that his case has been kept pending till finalization of the new rules. 6. In our view, this reason could not have been a valid and legal reason for not considering the case of promotion of respondent, for that, once an employee’s case is put up before the DPC, the same has to be decided by the DPC, either of allowing the promotion or not allowing the promotion and in the last mentioned eventuality, the employee has to be informed by giving reason of denial of promotion to him. Admittedly, the rules for promotion Civil Petition No.18-P of 2021 - 3 - dated 20.04.2012 were in the field and the method of promotion provided in the said rules for promotion of Senior Scale Stenographers (BPS-16) to the post of Superintendent (BPS-17) was 10% by promotion on the basis of seniority-cum-fitness from Senior Scale Stenographers with five years’ service as such. These rules were very much in force when the case of respondent was put up before the DPC. 7. In presence of the rules, the department’s response that his case has been kept pending till finalization of new service rules, was ex facie illegal and also unjustified. When matter of promotion is placed before the DPC, the DPC is required by law to consider the case of the employee put up for promotion and in doing so, it has to consider the case of employee for promotion fairly, justly and honestly. 8. The DPC’s action of not considering or taking decision for promotion of respondent was, thus, not sustainable in law. The Tribunal in the impugned judgment while accepting the service appeal of respondent has given direction to the petitioners to process the case of respondent for ante-dated promotion from the date when his case was first considered for promotion with all back benefits accrued to him. 9. In our view, the using of the word process by the Tribunal in the impugned judgment was not justified as well as legal, in that, while considering the case of promotion on seniority- cum-fitness, the question of eligibility and fitness has to be determined. While eligibility can be determined on the basis of terms and conditions of service, the question of fitness is always Civil Petition No.18-P of 2021 - 4 - based upon subjective evaluation on objective criteria, and such exercise has been left to be conducted by the competent authority in the department. It is, however, always expected that the competent authority while exercising its discretion in determining the case of fitness or otherwise of a government servant for being promoted to hold higher post shall not conduct itself arbitrarily or in colourable exercise but consider the question of fitness based upon reasons, fairly and justly. Therefore, the direction of the Tribunal of processing the case of respondent for ante-dated promotion from the date when his case was first considered for promotion with all back benefits accrued to him, appears to be an excess of jurisdiction and thus, is not sustainable. 10. As two working-papers of respondent for his promotion to the post of Superintendent (BPS-17) have already been put up before the DPC, in our view, it will be just and fair to direct the DPC to consider the case of respondent for promotion to the post of Superintendent (BPS-17) and decide the same expeditiously, preferably, within a period of three months from today. 11. In view of the above, the petition is converted into an appeal and is partly allowed to the extent noted above. CHIEF JUSTICE JUDGE Bench-I Islamabad 08.06.2021 APPROVED FOR REPORTING Rabbani*/ JUDGE Civil Petition No.18-P of 2021 - 5 -

{'id': 'C.P.L.A.18-P_2021.pdf', 'url': ''}

{'id': 'C.P.L.A.18-P_2021.pdf', 'url': ''}

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            

{'id': 'C.P.L.A.1800_2015.pdf', 'url': ''}

{'id': 'C.P.L.A.1800_2015.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL PETITION NOs. 1812-L TO 1815-L, 1962-L TO 1970-L, 1981-L TO 1983-L TO OF 2017 (On appeal against the judgment dated 14.04.2017 passed by the Lahore High Court, Lahore in ICA Nos. 1196/2015, 1340/2015, 1344/2015, 1635/2015, 1197/2015, 1252/2015, 1258/2015, 1300/2015, 1455/2015, 1495/2015, 1500/2015, 1733/2015, 1821/2015, 1388/2015, 1467/2015 & 1535/2015) M/s Advance Telecom (In CP 1812-L/2017) M/s M.I. Sanitary Store etc (In CP 1813-L/2017) M/s Marosh etc (In CP 1814-L/2017) M/s Dar Ceramics Trading Co etc (In CP 1815-L/2017) M/s Fincera (Pvt) Ltd, Lahore (In CP 1962-L/2017) M/s Usman & Umer Enterprises, Lahore etc (In CP 1963-L/2017) M/s Saad International Lahore etc (In CP 1964-L/2017) M/s Tayyab Traders, Lahore etc (In CP 1965-L/2017) M/s Commercial Corporation, Lahore etc (In CP 1966-L/2017) M/s Waheed Sons, Lahore etc (In CP 1967-L/2017) M/s Sara Enterprises, Lahore etc (In CPs 1968 & 1969-L/17) M/s Ibrahim Traders, Lahore etc (In CP 1970-L/2017) M/s Qureshi Sons, Lahore etc (In CP 1981-L/2017) M/s Umair International, Lahore etc (In CP 1982-L/2017) M/s Hussain Traders, Lahore etc (In CP 1983-L/2017) … Petitioners VERSUS Federation of Pakistan etc (In all cases) … Respondents For the Petitioners: Mr. Shafqat Mehmood Chohan, ASC Mian Muhammad Athar, ASC For the Respondents: Ch. Muhammad Zafar Iqbal, ASC Mr. Walayat Umar Ch, AOR Date of Hearing: 22.09.2017 JUDGMENT FAISAL ARAB, J.- Under Article 8 of the Bilateral Free Trade Agreement between Pakistan and China, the Customs duty on the goods originating in the territories of each country was to be progressively eliminated. Pursuant to such agreement, the Government of Pakistan issued SRO No.659(I)/2007 dated 30.06.2007 whereby the rate of customs duty was gradually CIVIL PETITION NOs. 1812-L TO 1815-L, 1962-L TO 1970-L, 1981-L TO 1983-L TO OF 2017 2 reduced in four stages and in certain cases goods became duty free. Exercising the powers contained in Section 18(3) of the Customs Act, 1969, the Federal Government imposed regulatory duty on 397 goods imported vide SRO No. 869(I)/2008 dated 27.08.2008. However, regulatory duty was not chargeable on goods covered under Free Trade Agreement. Imposition of regulatory duty was again repeated vide SRO No. 482(I)/2009 on the same terms as was imposed under SRO 869(I)/2008. 2. In 2014, the Federal Government issued notification bearing SRO No. 568(I)/2014 dated 26.06.2014 whereby regulatory duty was imposed but this time no exception was made for the goods covered under the Free Trade Agreement. The petitioners, who are importers of goods covered under the Free Trade Agreement challenged the imposition of regulatory duty in Writ Petitions filed in the Lahore High Court on the ground that in the presence of the Free Trade Agreement, regulatory duty could not have been charged as it amounts to imposing customs duty in the garb of regulatory duty. The learned single Judge of the High Court, allowed the Writ Petitions on the ground that the regulatory duty being a kind of customs duty could not have been validly imposed in violation of the provisions of the Free Trade Agreement. It was further held that the present bilateral Free Trade Agreement is an offshoot of GATT and, therefore, be considered as a multilateral agreement as envisaged under the proviso of Section 18(5) of the Customs Act. Aggrieved by such decision, the Federation of Pakistan preferred Intra Court Appeals before the Division Bench of the Lahore High Court, which were allowed and imposition of regulatory duty was declared to be CIVIL PETITION NOs. 1812-L TO 1815-L, 1962-L TO 1970-L, 1981-L TO 1983-L TO OF 2017 3 valid vide impugned judgment dated 14.04.2017. Hence, these petitions. 3. Learned counsel for the petitioners mainly argued two points. First, it was contended that while imposing regulatory duty under SRO 869(I)/2008, it was clearly mentioned that regulatory duty would not be chargeable on the goods imported under the Free Trade Agreement and unless this SRO, which created an exception to the imposition of regulatory duty on goods covered under Free Trade Agreement is withdrawn, such duty could not be validly imposed at any subsequent stage. Second, it was argued that proviso to Section 18(5) of the Customs Act, 1969 is attracted to the case, therefore, duty could not be levied on goods covered under a multilateral trade agreements and the Free Trade Agreement being an offshoot of General Agreement on Tariff and Trade (GATT), hence it is to be regarded as a multilateral agreement for the purposes of the proviso to Section 18(5). Thus it was contended that imposition of regulatory duty be declared ultra vires of the proviso. As regards to the argument that the regulatory duty is part of the customs duty and once rate of duty has been reduced or became duty free pursuant to the Free Trade Agreement, no further regulatory duty could have been imposed, this question stands settled by a decision of this Court in the case of Collector of Customs and others Vs. Ravi Spinning Ltd and others (1999 SCMR 412) wherein it has been held as under:- “The statutory duty prescribed under the First Schedule to the Act has nexus only with the duty levied under section 18(1) of the Act. Therefore, on the language of these S.R.Os., it is not possible to hold that the exemption granted under these notifications also applied to the customs duty levied in CIVIL PETITION NOs. 1812-L TO 1815-L, 1962-L TO 1970-L, 1981-L TO 1983-L TO OF 2017 4 addition to the statutory duty under section 18(2) of the Act or under other laws for the time being enforced. We have already pointed out earlier in this judgment that in contradiction to the customs duty levied under section 18 (1), of the Act, which is prescribed and predetermined, the regulatory duty is neither prescribed nor pre-determined but is levied at a rate which may vary according to the circumstances. Therefore, regulatory duty imposed by the Government under section 18(2) of the Act though a species of customs duty, is a duty in addition to the duty prescribed under the First Schedule to the Act to meet a particular situation, not covered by the statutory duty. (page 458) 14. Regulatory duty, on the other hand, is neither fixed nor pre-determined. It is imposed in exercise of the delegated authority, by the Government subject to limitations mentioned in clauses (2) to (4) of section 18,…. ……………….. The regulatory duty, therefore, by its very nature is a transitory measure intended to cover and meet a situation or condition not covered by the statutory duty prescribed under section 18(1) of the Act……………” (pages 430-431) 4. This view was reiterated in another judgment of this Court in the case of Indus Trading and Contracting Company Vs. Collector of Customs (Preventive) Karachi and others (2016 SCMR 842). It was held as under:- “5. Under section 18 of the Customs Act, 1969, customs duties are levied under different nomenclatures. Under section 18(1) statutory customs duty is imposed whereas under section 18(2) (after amendment regulatory duty is covered under section 18(3) of the Customs Act) the legislature has empowered the Federal Government to impose regulatory duty through notifications. Therefore, statutory duty under section 18(1) and regulatory duty under section 18(2) are two distinct categories of duties. One should not be taken to be the same as the other. It is by now well settled by the judicial pronouncements of this Court that where import or export of any commodity enjoys exemption from statutory customs duty, even then the Federal Government can impose regulatory duty, within the confines described in section 18(2) of Customs Act through sub- ordinate legislation. Where the legislature grants exemption from the payment of customs duty that falls under section 18(1), the same cannot be made basis to avoid payment of regulatory duty imposed subsequently unless there is also a promise that such concession would also be applied to regulatory duty in case it is levied in future. As the exemption in the present case does not contain such a promise it is to be applied only to duty that was chargeable under section 18(2) and not to a duty which can be competently levied under a different nomenclature.” 5. Insofar as the proviso to Section 18(5) of the Customs Act is concerned, the issue already stands resolved by the judgment of this Court in the case of Majeed and Sons Steels (Pvt) Ltd and CIVIL PETITION NOs. 1812-L TO 1815-L, 1962-L TO 1970-L, 1981-L TO 1983-L TO OF 2017 5 others Vs. Federation of Pakistan through Secretary M/o Economic Affairs, Islamabad etc. (2016 SCMR 655) wherein it has been held that bilateral agreements cannot be read into the proviso of Section 18(5) of the Customs Act. As to the other argument that under the first SRO 896(I)/2008 an exception from regulatory duty was created for goods covered under the Free Trade Agreement and as long as the exception granted by said SRO is not withdrawn, regulatory duty could not be charged, suffice it is to state that the earlier SRO was not in relation to grant of exemption from regulatory duty on goods covered under Free Trade Agreement. It only imposed regulatory duty on certain items which did not cover goods that were part of Free Trade Agreement. In these circumstances, the Government was well within its right to impose regulatory duty on such goods as well at any stage, which it did vide SRO 568(I)/2014. It was not necessary at all to first withdraw the exception granted earlier in SRO whereby the regulatory duty was imposed only on goods not covered under the Free Trade Agreement. 6. For what has been discussed above, we do not find any merit in these petitions, which are accordingly dismissed and leave is refused. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 22nd of September, 2017 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Civil Petition No.1839 of 2018 (Against judgment dated 3.4.2018 passed by Peshawar High Court Peshawar in W.P. No.2614-P of 2016) Fayaz Khan …Petitioner(s) Versus Govt. of Pakistan through Secretary Aviation Cabinet Secretariat, Aviation Division, Islamabad & another …Respondent(s) For the Petitioner(s): Mr. Muhammad Bashir Khan, ASC Mr. Arshad Ali Chaudhry, AOR For the Respondent(s): N.R. Date of hearing: 14.1.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.-Fayyaz Khan, petitioner, Corporal/Guard in Airport Security Force, posted at Bacha Khan International Airport Peshawar, was proceeded against by virtue of Section 7-A of the Airport Security Force Act, 1975 ( Act No.LXXVII of 1975); he had come all the way to Benazir International Airport Islamabad on 19.12.2015 to facilitate one Zishan to get on board Flight TK-711, en route to Bahrain; with the assistance of Corporal Asad Abbas Khan, the passenger was extended special protocol, including exemption from body search, however, in the passengers’ lounge, few paces away, he was intercepted by the staffers at Anti Narcotic Force Counter; found in possession of heroin concealed in capsules, he was taken into custody. As investigation progressed, petitioner along with Asad Abbas Khan was taken on board, in consequence whereof, he was dismissed from service on 4.4.2016 by a Summary Court Martial; departmental appeal met with no better fate and it is in this background that the petitioner attempted before the Peshawar High Court Peshawar through a Constitutional petition, dismissed on 13.4.2018, vires whereof are being assailed through the present petition. Civil Petition No.1839 of 2018 2 2. Learned counsel for the petitioner contends that the petitioner unsuspectingly extended traditional courtesy to a family acquaintant and as such was not actuated by any mens rea calling for his dismissal from service; it is next argued that there is no evidence to legally drive home the charge against the petitioner inasmuch as the statement of Asad Abbas Khan, meted out same fate, could not have been relied upon without placing him in an extremely disadvantageous position. Being a civilian, decision of his fate by a Summary Court Martial was absolutely unwarranted, concluded the learned counsel. 3. Heard. Record perused. 4. Argument that the petitioner was not subject to the Pakistan Army Act, 1952 (Act No.XXXIX of 1952) is entirely beside the mark, as it is admitted at all hands that he was a corporal/guard, employed in the Airport Security Force. By virtue of Section 7-A of the Airport Security Force Act, every officer/member of the force, is subject to the Pakistan Army Act and, therefore, was competently proceeded against by a duly constituted tribunal, findings whereof cannot be upset unless shown to have been carried out without jurisdiction, coram non- judice or mala fide, situations, conceivably out of the realm of possibility; view taken by the learned High Court is inconsonance with the law declared by this Court in the case of District Bar Association, Rawalpindi & others Vs. Federation of Pakistan & others (PLD 2015 SC 401). Argument on lack of evidence does not hold water either; each step the petitioner had taken while escorting Zishan, the drug-pusher whom he had facilitated to get on board a Bahrain bound international flight was captured, by the close circuit TV cameras, installed at the airport; the latter was caught red-handed with the contraband as well as boarding card/air ticket; he cannot escape the preponderance of evidence pointing inexorably upon his culpability by merely clamouring a loud denial. Petition fails. Leave declined. Judge Judge Islamabad 14th January, 2020 Not approved for reporting Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Ejaz Afzal Khan Mr. Justice Mushir Alam Civil Petitions No.1885 and 2259 of 2017 Against the judgment dated 30.3.2017 passed by the Peshawar High Court, Peshawar in WPs No.832-P & 843-P of 2017. Olas Khan (in CP 1885/17) Chairman, NAB thr. Its Chairman and others (in CP 2259/17) Petitioner(s) VERSUS Chairman, NAB thr. Its Chairman and others (in CP 1885/17) Sahibzada Alamgir (in CP 2259/17) Respondent(s) For the Petitioner(s): Syed Mudassar Ameer, ASC (in CP 1885/17) For the Petitioner(s): Mr. Inamul-Haq, Spl. Prosecutor, NAB (in CP 2259/17) Mr. Arshad Qayyum, Spl. Prosecutor, NAB Mr. Junaid Iqbal, IO For the Respondent(s): Mr. Inamul-Haq, Spl. Prosecutor, NAB (in CP 1885/17) Mr. Arshad Qayyum, Spl. Prosecutor, NAB Junaid Iqbal, IO For the Respondent(s): Mr. Shumail Butt, ASC (in CP 2259/17) Date of Hearing: 03.08.2017 ORDER Mushir Alam, J.- Through this common judgment we intend to decide CPLA No.1885 of 2017 by the petitioner Olas Khan, challenging judgment dated 30.3.2017 passed by the learned Bench of the Peshawar High Court, in Writ Petition No.832-P of 2017, declining bail to him in NAB Reference and through the same judgment conceded bail to Saibzada Alamgir, facing trial under same NAB Reference under section 497 Cr. P.C, which exercise of Jurisdiction under code of Criminal Procedure has been impugned and cancellation of bail is sought by the Chairman NAB through CPLA No.2259 of 2017. 2. Learned Special Prosecutor, NAB has with vehemence questioned the Jurisdiction of High Court to concede bail to a person Civil Petitions No.1885 & 2259 of 2017 2 accused of an offence under section 9 (a) of the NAB Ordinance, 1999. According to him section 9(b) of the Ordinance ibid, is non-obstinate provision and all offences under the NAO, 1999, are made non-bailable and general provisions regulating pre-arrest or post-arrest bail or release of person from detention, suspension of sentence, in terms of Section 426, 491, 497, 498, and 561-A of the Code of Criminal Procedure Code, 1908 have been excluded in application. To support his contentions he placed reliance on large number of cases from different High Courts and of this Court reported as Mrs.Shahida Faisal and others versus Federation of Pakistan and others (2001 SCMR 294) and Anwer Saifuallh Khan versus The State and three others (2001 SCMR 1040), wherein it has been held that jurisdiction of both the Accountability Court as well as the High Court is ousted in terms of Section 9(b) of the Ordinance, ibid in the matter of bail to a person facing reference under the National Accountability Bureau Ordinance, (NAO, 1999). Though in both the cited cases, it was held that jurisdiction to concede bail under Article 199 of the Constitution would be available. In the case of Syed Zafar Ali Shah and others versus General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 SC 869) in paragraph 7 of the operative part at page 1222 it was also observed that “validity of the National Accountability Ordinance will be examined separately in appropriate proceedings at appropriate stage”. 3. Challenge to the jurisdiction of High Court to concede bail to persons facing reference for charged under the NAO, 1999 is not novel; and has been agitated time and again since very inception of the NAO, 1999. Section 9 (b) ibid; prior to amendment read as follows:- “All offences under this Order shall be non-bailable and notwithstanding anything contained in sections *(426, 491), 497, 498 and 561-A or any other provision of the Code or any other law for the time being in force no Court, including High Court shall have jurisdiction to grant bail to any person accused of any offence under this Order.” (*Inserted by Ordinance IV/2000 dated 3.2.2000). Civil Petitions No.1885 & 2259 of 2017 3 4. In terms of Section 9 (b) of NAO, 1999 as reproduced above all offences under the NAO, 1999 are non-bailable and general provisions regulating suspension of sentence, order in the nature of habeas corpus, pre-arrest and or post-arrest bail in exercise of power under Sections 426, 491, 497, 498, and 561-A of the Code of Criminal Procedure Code, 1908 have been excluded in application. Both the cases of Mrs.Shahida Faisal (Supra) and Anwer Saifuallh Khan (Supra) relied upon by the learned Special Prosecutor, NAB are based on the exposition of un- amended section 9(b) of NAO, 1999 as reproduced above and the judgments in the cited cases were penned down on 10.7.2000 and 21.2.2001 respectively and prior to judgment rendered by a four member Bench of this Court in the celebrated judgment rendered on 24.4.2001 in the case of Khan Asfandyar Wali and others versus Federation of Pakistan through Cabinet Division Islamabad and others (PLD 2001 Supreme Court 607), when this Court had the occasion to examine the vires of various provisions including section 9(b) of NAO, 1999. In paragraph 197 at page 885 of the cited judgment, principle laiddown in the case of Syed Zafar Ali Shah (PLD 2000 Supreme Court 869), was reiterated that the “the power of Superior Courts under Article 199 of the Constitution remaining available to their full extent, notwithstanding anything contained in any legislative instruction enacted by the Chief Executive Whereas, section 9(b) of the NAB Ordinance purports to deny all Courts, including the High Court the jurisdiction under section 426, 491,497, 498 and 561-A of Code of Criminal Procedure or any other law for the time being in force to grant bail to any person accused on an offence under the NAB Ordinance. It is well settled that the Superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as section 497 of the Criminal Civil Petitions No.1885 & 2259 of 2017 4 Procedure Code, section 9(b) of the NAB Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended accordingly.” 5. Consequent upon judgment rendered in the case of Khan Asfandyar Wali (PLD 2001 SC-607 @ 885), through Ordinance No. XXXV of 2001 dated 10.8.2001 (PLJ 2001 Federal Statute 403), in Section 9(b) ibid; after the words “no Court” words, “Including High Court” were omitted. The amended provision, now read as follows:- “All offences under the Order shall be non-bailable and notwithstanding any thing contained in sections 426,491, 497, 498 and 561A or any other provision of the Code or any other law for the time being in force no Court,** shall have jurisdiction to grant bail to any person accused of any offence under this Order.” (**Including High Court” omitted) 6. It may be observed, that merely omission of words “including High Court” in section 9(b) of the NAO, 1999 did not effect the legal implication; nor made any impact on overall scheme of the provision regulating either pre-arrest or post-arrest bail; offences under the NAO, 1999 remained non bailable and a person accused of an offence there under, in view of non obstinate language used in section 9(b) ibid; remedies available to general Courts of criminal jurisdiction under “sections 426, 491, 497, 498 and 561-A or any other provision of the Code or any other law for the time being in force” remained beyond the pale of NAO, 1999. 7. NAO, 1999 is a special statute, hybrid in nature, it is fusion of criminal liability and civil obligations, enacted with an aim to take effective measures for detection, investigation, prosecution and speedy trial of cases involving corruption, corrupt practices, misuse or abuse of power, and misappropriation of property and recovery of the same from the beneficiary or those found to have misappropriated such property and restoration of the same to the rightful owner thereof. It create special genre of offences and wrongs. Civil Petitions No.1885 & 2259 of 2017 5 8. Amended provision of section 9(b) ibid; came up for consideration of this Court in the case of Muhammad Saeed Mehdi versus The State and 2 others (2002 SCMR 282) and at page 289, view expressed by the full Bench of the Lahore High Court in the case of Anwer Saifullah v. The State and four others (PLD 2000 Lahore 564) “that the High Court had jurisdiction under Article 199 of the Constitution to grant bail to a person accused of an offence under NAB Ordinance in appropriate cases in that the bar of jurisdiction there under being in the nature of legislative enactment could not take away the jurisdiction of the High Court under Article 199 of the Constitution” was approved. In another case reported as Ch. Zufiqar Ali versus The State (PLD 2002 Supreme Court 546) in the concluding part of paragraph 8 at page 552 it was held “After the amendment, the jurisdiction of the Accountability Court for grant of bail remained ousted, whereas after the omission of words “including the High Court” the High Court has jurisdiction to grant bail in NAB cases under Article 199 of the Constitution as held in the case of Khan Asfandyar Wali” which view was also affirmed in the case of Abdul Aziz Khan Niazi versus The State through Chairman, NAB, Islamabad (PLD 2003 Supreme Court 668) in paragraph 7 at page 675, it was held that “the refusal of bail by the High Court in its constitutional jurisdiction merely for the reason that the concept of discretion for grant of bail under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is different to that of under section 497/498 Cr.P.C is not proper. The discretion of High Court under the Constitution and under ordinary law in bail matter is based almost on same principle.” This view was followed in the case of Haji Ghulam Ali versus The State through A.G., N.W.F.P., Peshawar (2003 SCMR 597); wherein, this Court had the occasion to analyze the legal implications of section 9(b) of the NAB Ordinance, 1999 as amended, at page 602 of the cited judgment it was held “We may point out that the use of word “notwithstanding” in the said section would still exclude the Civil Petitions No.1885 & 2259 of 2017 6 applicability of section 497 Cr.P.C in the cases under NAB Ordinance, 1999. However, as held in above said Judgment (Ch. Zulfiqar Ali supra) the power of High Court for grant of bail in writ jurisdiction would be available and an accused of an offence under NAB Ordinance, 1999 is at liberty to take any ground for grant of bail on the basis of which bail can be granted under section 497, Cr.P.C. The conclusion is that even after amendment in section 9(b) of NAB Ordinance, 1999 the legal position regarding the maintainability of a bail application under section 497, Cr.P.C in a case under the said Ordinance was not changed” at page 604 it was further affirmed that “In amended section 9(b) of NAB Ordinance, 1999, except the omission of words “High Court” no change was made, therefore, the legal position regarding maintainability of bail application under section 497 Cr.P.C before the High Court in the case under the NAB Ordinance, 1999 would remain as such and an accused of such an offence cannot maintain a bail application before the High Court under section 497, Cr.P.C.” In the case of Chairman, National Accountability Bureau, Islamabad and another versus Asif Baig Muhammad and others (2004 SCMR 91), this Court declined to interfere in bail granting order passed by the High Court in exercise of jurisdiction under Article 199 of the Constitution, 1973. 9. The view expressed by this Court in the case of Anwer Saifullah Khan (Supra) was successively followed and resonates in the cases of Ch. Zulfiqar Ali (PLD 2002 SC 546), Muhammad Saeed Mehdi (2002 SCMR 282), Muhammad Jehangir Badar versus The State and others (PLD 2003 Supreme Court 525), Abdul Aziz Khan Niazi versus The State through Chairman, NAB, Islamabad (PLD 2003 Supreme Court 668), Chairman, National Accountability Bureau, Islamabad and another versus Asif Baig Muhammad and others (2004 SCMR 91 @ 93), National Accountability Bureau versus Khalid Masood and another (2005 SCMR 1291) and recently in the case of Himesh Khan versus National Civil Petitions No.1885 & 2259 of 2017 7 Accountability (NAB) Bureau, Lahore and others (2015 SCMR 1092, paragraph 7 & 8 @ 1095) and so also in un-reported judgment dated 26.8.2016 titled as Chairman NAB versus Bakht Zameen & another (in CP No.1542 of 2016), in all such cases bail was considered under Article 199 and or Article 184 of the Constitution of Pakistan, 1973 respectively and not under section 497 Cr.P.C. 10. Contention of the learned Special Prosecutor, NAB that jurisdiction pertaining to grant of bail by the High Court is concurrent jurisdiction with the trial Court, therefore, ouster of jurisdiction of the Accountability Court ousts the jurisdiction of the High Court, has not impressed us. Accountability Court has no jurisdiction to grant either pre-arrest and or post-arrest bail, as provisions of Cr.P.C regulating grant or otherwise pre-arrest and or post-arrest bail in cases under NAO, 1999 in view of non-obstinate provisions of section 9(b) of NAO, 1999 are inapplicable. However, position as regards High Court and this Court is altogether different, superior Courts extract jurisdiction under Article 199 and 184 respectively of the Constitution, 1973 to consider and grant bail or otherwise, in cases under NAO, 1999 and not under section 9(b) and or 17(c) the NAO, 1999, which jurisdiction, neither can be taken away nor, made subservient through sub-ordinate legislation. Contention of the learned Special Prosecutor NAB is correct to the extent that the assumption of jurisdiction by the Peshawar High Court to concede bail under section 497 Cr.P.C to the Respondent Sahibzada Alamgir (in CPLA 2259 of 2017), is not available. However, in view of the stated legal position, such objections retreats merely of form bereft of any substance. Exercise of jurisdiction by the High Court to concede bail in instant case cannot be set at naught merely because such jurisdiction was erroneously assumed under section 497 Cr. P.C, though admittedly jurisdiction to concede bail or otherwise was very much vested in the High Court under Civil Petitions No.1885 & 2259 of 2017 8 Article 199 of the Constitution of Pakistan, 1973, and such assumption of jurisdiction in the given facts and circumstance can always be considered under Article 199 of the Constitution, 1973. It is now settled position in law that merely citing or relying on wrong provision of law to assume jurisdiction over a lis is of no consequence, provided the Court other wise has jurisdiction under the Constitution, statue or any other provision of law to pass order as has happened in the instant case. For reference one may see Mst.Safia Bibi versus Mst.Aisha Bibi (1982 SCMR 494), Jane Margrete William versus Abdul Hamid Mian (1994 SCMR 1555), Rauf B Kadir versus State Bank of Pakistan and another (PLD 2002 Supreme Court 1111). 11. While assuming jurisdiction under section 497 Cr.P.C learned bench of the High Court, was influenced and has misconstrued section 17 of the NAO, 1999 which makes the provisions of Cr.P.C including procedure for session trial (per chapter XX-A of the Cr.P.C) applicable, unless otherwise, provided in the NAO, 1999 itself. Section 17 (c) ibid; librated the Accountability Court from the procedural and technical trapping of Criminal Procedure Code, giving it authority not only to “dispense with any provision of the Code” and at the same time empowered it “to follow such procedure as it may deemed fit in circumstances of case.” [17(c) ibid;] However, freedom to “follow such procedure as it may deemed fit” does not empower the Accountability Court or for that matter the High Court to assume jurisdiction and or invoke provisions of Cr.P.C, which are specifically excluded by virtue of section 9(b) ibid; from application in cases triable under NAO, 1999 in ostensible exercise of power under section 17(c) ibid; of the NAO, 1999. Such enabling power of the Accountability Court were conditioned by this Court in the case of Khan Asfandyar Wali (PLD 2001 SC 607@ 926), “not exercise its discretion arbitrarily but on sound judicial principles by Civil Petitions No.1885 & 2259 of 2017 9 assigning valid reasons.,” such exercise of discretion was also held to be “Justiciable in exercise of Constitutional jurisdiction of Superior Court”. Excluding the words “including High Court” from Section 9 (b) ibid; as noted above has not brought about any change on overall scheme of the provision regulating matters under the exclusionary provisions of Code of Criminal Procedure mentioned therein including Sections 497 and 498 Cr.P.C regulating pre-arrest and post-arrest bail. 12. Judgment in the case of Muhammad Saeed Mehdi (2002 SCMR 282) was not appreciate by the learned bench of the High Court in its true perspective. In the judgment it was specifically observed that the “High Court has jurisdiction to grant bail in NAB cases under Article 199 of the Constitution” relevant part of paragraph 8 of cited judgment is reproduced in preceding paragraph 8 above and, perhaps attention of the learned bench was also not drawn to the cases of Haji Ghulam Ali, supra. (2003 SCMR 597) @ 602), Himesh Khan versus National Accountability Bureau (2015 SCMR 1092 @ 1095) In view of the forgoing discussion, conclusion of the learned Bench of the Peshawar High Court; as contained in paragraphs 12 to 15 of the impugned judgment to the effect that High Court by virtue of section 17 (c) ibid; can import and or exercise power contained in Sections 491, 496, 497, 498, 561-A Cr.P.C, is not correct exposition of law, to such an extent impugned order cannot be sustained.; Now adverting to the merit of the respective Petitions. Civil Petition No.1885 of 2017 13. Petitioner Olas Khan in CPLA 1885 of 2017 was declined bail by the Peshawar High Court, Peshawar in Writ Petition No.832-P of 2017 vide impugned judgment dated 30.03.2017. 14. Petitioner was Director General on Farm Water Management, Department and Provincial Project Director for the Project of “Water Civil Petitions No.1885 & 2259 of 2017 10 Conservation and Productivity Enhancement through High Efficiency (Pressurized) Irrigation System”. Allegation against the present petitioner has been highlighted in the investigation report dated 19.01.2017 available at page 37 (in CPLA 2259/2017), his role is highlighted in paragraph No.10 (1-6) thereof. It is specifically mentioned that he has issued various work orders for the implementation of the scheme without insuring the 20% farmers’ share which is in utter disregard to the Implementation Plan given in PC-1 and he has even released the funds for dropped scheme causing colossal loss to the national exchequer. It was further noted that on physical verification that out of 182 schemes only six schemes are functional and rest of 176 schemes are non- functional resulting in waste of national resources. Learned bench of the High Court on the strength of available record declining bail vide impugned order reasoning is contained in paragraphs 17-19 thereof; which are reproduced as follows:- “17. The record reveals that the accused/petitioner had advanced 20% mobilization amount even to those companies, persons, whose works were dropped and even the schemes were not found feasible. 18. It is also depicted and palpable on available record that many schemes for which more than 80% amount had released were not existed on grounds but those were commissioned and funds were released with active connivance of the Project director. 19. As it is settled principle of law, that deep appreciation of facts, while disposing of bail petition or constitutional petition, in matter of detention, is not requirement of law, but prima facie from the inquiry against the petitioner Olas Khan, sufficient and reasonable documentary proof is available which makes out a case, in term of Section 9 of the NAB Ordinance, 1999 against him so he does not deserve any concession of bail at this stage. So his petition for release on bail in the instant matter is declined and the WP No.843-P/2017 filed by him, is dismissed accordingly.” 15. Learned ASC for the petitioner that after the 18th Constitutional Amendment in July, 2011 the subject project devolved unto respective Provinces, in instant case Khyber Pakhtunkhwa, and that the Petitioner also retired from service in the year 2013 and since July 2011. He is no more associated or responsible for alleged corruption Civil Petitions No.1885 & 2259 of 2017 11 and or corrupt practice. He laid much emphasis on the judgment passed by the Peshawar High Court in Writ Petition 1208-P of 2014 dated 29.11.2016 wherein, the High Court directed payment of outstanding amount for the work done of the verified and completed schemes. 16. It was therefore, urged that the Petitioner is not responsible. And the present exercise is uncalled. He further relies on the reports so submitted pursuant to the directions of the Peshawar High Court in the referred petition supports the petitioner’s claim. He also relied upon report of the representative of NESPAK and HESCON (page 178 to 180 of CPLA 1885/17) per direction of the High Court, in the referred Writ Petition to seek exoneration from any corrupt practice as alleged. Learned ASC further referred to letter dated 22.05.2013 (at page 170), and argued that adjustment of 20% being farmer share was not deposited for the reason that instead of cash the farmers who were the beneficiary of the project contributed in form of labour as approved by the competent authority, which fact has been certified by the Secretary, Government of Khyber Pakhtunkhwa, Agriculture and Live Stock & Coop: Department, Peshawar. It was contended by the learned ASC for the Petitioner that it is a fit case to enlarge the Petitioner on bail. 17. Learned Special Prosecutor NAB controverted the stance adopted by the petitioner. He has drawn our attention to the various portions of the Project PC-1, documents of the subject project to show that it was petitioner’s responsibility to ensure its due compliance being the Director General, as well Project Director on Farm Water Management, Department. He has placed on record various work orders and the copies of the cheques issued to the contractors without due complaisance of all the requirements and in abdication of his authority as detailed in the PC-1, filed through CMA No.5314 of 2014. He has also drawn our attention to various monitoring letters addressed to the Civil Petitions No.1885 & 2259 of 2017 12 petitioner to ensure that his “report” reflect true progress of work, quality of material delivered at site and quality of work mentioned” and he was directed to address the deficiency as noted in the monitoring reports, which were not paid any heed. As regards the reliance on the proceeding in the High Court by certain contractors, it was urged that such proceedings did not relate to the conduct of the petitioner nor relate to the corruption and corrupt practice committed by persons associated with the monitoring and or execution of the project, therefore of no relevance, It was contended by the Special Prosecutor NAB that the report of the representatives of NESPAK and HEISCON, was also examined by the successors of the petitioner vide letter dated 09.12.2013 (page 181 of the paper book)) and it was noted that same is based on discrepant contents. 18. We have heard the arguments and perused the record with the assistance of learned ASC for the Petitioner and Special Prosecutor NAB. At the very outset it may be observed that original project period was five years effective July, 2007 to July, 2011. As claimed by the Petitioner subject project, devolved on the Province of Khyber Pakhtunkhwa, in July, 2011 and that the Petitioner retired in the year 2013, fact remains that the corruption and or corrupt practice, of which the Petitioner is accused of pertains to a period prior to devolution of the Project on the Khyber Pakhtunkhwa and or prior to his retirement. We have noted that PC-1, all the work orders, cheques, monitoring reports etc. placed on record through CMAs 5314 of 2017 and CMA 5383 of 2017, were all signed and issued by the Petitioner pertains to the Petitioner during his tenure as the Project Director. As regard the proceeding in Writ Petition 2197 of 2012 and orders passed thereon dated 22.06.2016 before the Peshawar High Court is concerned, as rightly pointed out by the learned Special Prosecutor NAB, same were Civil Petitions No.1885 & 2259 of 2017 13 not in relation to the conduct of the Petitioner, therefore, have no bearing on the investigation, and or proceedings under the NAO, 1999. The, report of the representative of NESPAK and HEISCON, (pages 178-180), also has no bearing on the allegations and charged against the Petitioner. The report does not exonerate the Petitioner, on the contrary it highlights certain deficiencies, in the performance of project, as also noted by the successor to the Petitioner in his letter dated 9.12.2013 (page 181) less commented better it is as it may prejudice case of either side. 19. In view of the foregoing, we are not persuaded by the learned ASC for the Petitioner, to take any exception to the view taken by the Peshawar High Court declining bail to the Petitioner which is accordingly declined, (one may refer to the cases cited as The State versus Haji Kabeer Khan (PLD 2005 Supreme Court 364) and Haji Ghulam Ali versus The State through A.G., N.W.F.P. Peshawar and another (2003 SCMR 597). It appears that entire record of the subject Project has been collected; it would not take much time to produce the same and complete the trial preferably within a period of four months. Civil Petition No. 2259 of 2017 20. Now adverting to the case of Saibzada Alamgir-Respondent (in CPLA 2259 of 2017), bail was conceded to him by the Peshawar High Court, in consideration of reasoning set down in Paragraph No.20 of the impugned judgment inter alia on the ground “As the inquiry is already completed against the accused, where he had (been) charged only for connivance and no any direct allegation had (been) brought by the NAB, therefore, keeping in view his position and kind of duties, assigned to him as Deputy Director, for the Northern region, he deserves to be released on bail”. 21. We have considered the grounds seeking cancellation of bail of Saibzada Alamgir-Respondent and noted that cancellation is sought essentially on the jurisdictional ground and on merit it was not contested Civil Petitions No.1885 & 2259 of 2017 14 seriously. Jurisdictional grounds have been elaborately dealt with in preceding paragraph. We have gone through the impugned judgment, it is well reasoned. Consideration for cancellation of bail, are altogether different and distinct from consideration for the grant of bail, one may see National Accountability Bureau versus Khalid Masood and another (2005 SCMR 1291). 22. Learned Special Prosecutor, NAB was not able to show any extraordinary or exceptional circumstances that may warrant recall of the order of the grant of bail by the High Court. Accordingly, the Civil Petition No.2259 of 2017 is dismissed and leave declined. Judge Judge ISLAMABAD Announced by me in open Court on__23rd October______,2017. Judge approved for reporting

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITION NO. 1948-L OF 2021 (Against the judgment dated 20.09.2021 passed by the Lahore High Court, Lahore in Writ Petition No. 55270/2020) Government of Punjab through Secretary Cooperative Societies Department, Lahore etc …Petitioners Versus Asad Abbas …Respondent For the Petitioners: Rana Shamshad Khan, Addl. A.G. For the Respondent: N.R. Date of Hearing: 27.12.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the order dated 20.09.2021 passed by the learned Lahore High Court, Lahore, whereby the Constitutional Petition filed by the respondent was allowed and the departmental order dated 06.02.2020 rejecting respondent’s application for his appointment as Sub-Inspector (BPS- 11) being next in merit was set at naught. 2. Briefly stated the facts of the case are that pursuant to an advertisement dated 02.07.2017, Punjab Public Service Commission invited applications from the eligible candidates for recruitment of four posts of Sub-Inspector (BPS-11) in the Punjab Cooperatives Department, Khushab. After written test and interview, a final seniority list was prepared wherein the respondent stood at Serial No. 8. Vide letter dated 26.09.2017, the Punjab Public Service Commission recommended the appointment of first four candidates of the seniority list and the names of the persons who secured 5th to 8th positions were kept at waiting list. Out of the four recommended Civil Petition No. 1948-L/2021 -: 2 :- for appointment, the candidate at Serial No. 1 namely Muhammad Irfan Zafar was selected for a higher post i.e. Inspector (BPS-14) whereas the candidate at Serial No. 2 namely Javed Iqbal refused to accept the job. Thereafter, vide letter dated 20.03.2018, the department requested the Commission to provide substitute of the said candidates and in response only the name of Muhammad Naeem Akhtar at Serial No. 5 was provided as substitute and the names of already recommended three candidates were again included. It appears from the record that candidate at Serial No. 3 namely Muhammad Waseem Akram subsequently resigned from duty on 30.04.2018 and in these circumstances out of the four vacancies, only one vacancy could be filled and the three were lying vacant. Pursuant to another request from the department dated 05.09.2018 for providing substitutes, the names of Muhammad Javed at Serial No. 6 and Babar Rehman Khan at Serial No. 7 were recommended by the Commission but they refused to join the duty and in this regard also sworn affidavits. The perusal of record reveals that the respondent and one another namely Muhammad Naeem Akhtar from the waiting list wanted to join the duty because five persons above them in the seniority list refused to accept the job. The said Mohammad Naeem Akhtar filed a Constitutional Petition before the High Court and ultimately succeeded in getting the relief sought for. Being aggrieved, the respondent also filed Writ Petition No. 214496/2018, which was disposed of on 27.02.2019 with the direction to the respondent to firstly approach the Department for redressal of his grievance. Pursuant to the said order, the respondent approached the department but his application was turned down by the department vide order dated 16.05.2019. Thereafter, the respondent filed Writ Petition No. 33726/2019 which was allowed vide order dated 28.11.2019 and the department was directed to re-decide his application through a well reasoned speaking order but the department again rejected his application vide order dated 06.02.2020, which led to filing of yet another Writ Petition No. 55270/2020 before the learned Lahore High Court, which has been allowed vide impugned order and the order dated 06.02.2020 passed by the department was set aside. Hence, this petition seeking leave to appeal. Civil Petition No. 1948-L/2021 -: 3 :- 3. The crux of the arguments advanced by the learned Additional Advocate General is that under Regulation No. 59 of the Punjab Public Service Commission Regulations, 2016, only the concerned department can ask for substitute in case a candidate fails to join the post, tenders his resignation or is declared unfit. Contends that first recommendation in this matter was sent on 26.09.2017 and in light of Regulation No. 62 of the Punjab Public Service Commission Regulations, 2016, after one year of the first recommendation the merit list expired on 25.09.2018 and since before the expiry of the merit list, the department had never asked for the substitution of fourth selected candidate, therefore, the request of the respondent was rightly rejected by the department. Lastly contends that requesting a substitute from waiting list is the sole prerogative of the department and the appointment as substitute from waiting list cannot be claimed as a matter of right. 4. We have heard learned Law Officer at some length and have carefully perused the available record. The perusal of record clearly reveals that for the four posts of Sub-Inspector (BPS-11) at Khushab Region, the Punjab Public Service Commission after conducting test and interview had prepared a seniority list of eligible candidates wherein the name of the respondent was at Serial No. 8. Vide letter dated 26.09.2017, the Commission recommended the names of first four persons to be appointed as Sub-Inspector (BPS-11) but as the candidate at Serial No. 1 was selected for the higher post of Inspector (BPS-14), therefore, he did not join the duty as Sub-Inspector (BPS-11); the person at Serial No. 2 refused to join the duty whereas the person at Serial No. 3 subsequently resigned on 30.04.2018 and only one vacancy could be filled in. To fill the remaining three vacancies, ultimately the names of persons from waiting list i.e. at Serial Nos. 5, 6 and 7 were recommended by the Commission but the record shows that the candidate at Serial No. 6 of the waiting list joined police department whereas the other at Serial No. 7 of the waiting list joined Education Department and refused to join the petitioner Department as Sub-Inspectors (BPS-11). In these circumstances, the name of the respondent eventually came at Serial No. 3. It is an Civil Petition No. 1948-L/2021 -: 4 :- admitted position that the person at Serial No. 5, who was also a waiting candidate, was appointed as Sub-Inspector. When there were vacancies available and after the refusal of the other candidates, who were above the respondent in the seniority list, the respondent came at Serial No. 3 and one waiting candidate was also appointed, denying the relief to the respondent is violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, which ensures equality before the law and equal protection of law and states that there shall be no element of discrimination. Merely for the fault of the department that it did not apply to the Commission to get the name of the respondent as substitute within the stipulated period of time, the respondent cannot be left to suffer for an irreparable loss. The learned High Court has rightly relied upon the judgment of this Court passed in Government of NWFP Vs. Qasim Shah (2009 SCMR 382) wherein this Court has candidly held that when some of the selected candidates do not join the service, such posts remain vacant and it is imperative for the department to consider the remaining candidates for appointment against the said posts because these posts cannot be kept vacant till the next process of recruitment, if some selected candidates are still available on the waiting list. The learned Law Officer put much stress on the point that at the time of expiry of the merit list i.e. 25.09.2018, no vacancy was available. However, as discussed above, this was not the case and the vacancies were available. This fact has been noted by the learned High Court in paragraph 6 of the impugned judgment and according to the dictates of Article 91 of the Qanun-e-Shahadat Order, 1984, judicial proceedings have got sanctity and a presumption of correctness is attached to the proceedings before a judicial forum. This Court in the case of Muhammad Ramzan Vs. LDA (2002 SCMR 1336) has categorically held that strong presumption of correctness and sanctity of high order is always attached to judicial proceedings. Reliance is also placed on Fayyaz Hussain Vs. Akbar Hussain (2004 SCMR 964) & Waqar Jalal Ansari Vs. National Bank of Pakistan (2008 CLD 1202). Mere the bald statement of the learned Law Officer without any documentary proof cannot overturn the judicial finding. Even otherwise, the expiry of time, if any, was not attributable to the respondent and could not be Civil Petition No. 1948-L/2021 -: 5 :- counted against him to deprive him from the post in question for which he was fully qualified and till date the post was vacant and had not been re-advertized. Learned Law Officer has raised this issue before this Court for the very first time and even did not agitate the same in the memo of petition. We have noticed that the learned High Court vide impugned order dated 20.09.2021 had directed the petitioner department to redress respondent’s grievance by taking all necessary steps in liaison with Punjab Public Service Commission within a period of thirty days but despite lapse of more than three months, no heed has been paid by the department, which clearly reflects its lethargic attitude. 5. For what has been discussed above, this petition having no merit is accordingly dismissed and leave to appeal is refused. JUDGE JUDGE Lahore, the 27th of December, 2021 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 1958 OF 2006 (On appeal against the judgment dated 31.03.2016 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1891(R)CS/2015) Controller of Military Accounts (RC) Education Cell, Rawalpindi … Petitioner Versus Muhammad Zafar, Assistant Professor and another … Respondents For the Petitioner: Mr. Sajid Ilyas Bhatti, DAG Mr. Jaffar Raza Khan, AOR (Absent) For the Respondent (1): Mr. Muhammad Shoaib Shaheen, ASC Mr. Ahmed Raza Ch, AOR (Absent) For the Respondent (2): Mr. Mehrban Khan, Admin Officer, FGEI, Dte, Rwp Date of Hearing: 19.01.2017 JUDGMENT FAISAL ARAB, J.- In February, 1987, respondent No. 1 was employed by respondent No. 2 on ad hoc basis on the post of Director Physical Education (BPS-16). He was later promoted to a post in BPS-17. On 28.06.1992, the respondent No. 1 was served with a termination letter wherein it was stated that in pursuance of government’s decision his ad hoc service would stand terminated with effect from 30.06.1992 and in lieu thereof he may accept a post in BPS-14. The respondent No. 1 readily accepted the offer and was appointed on permanent basis to the post of UUGT in BPS-14 with effect from 01.07.1992. After serving in this position for about 12 years respondent No. 1 applied for the post of Lecturer through Federal Public Service Commission and was appointed as Lecturer in BPS-17 on 17.10.2003. 2. As the respondent No 1 was holding a BPS-17 post on ad hoc basis before his appointment in BPS-14 on 01.07.1992, he sought benefit of pay protection that is available to an employee who on account of government’s decision is rendered surplus and is accommodated in a post that is lower than his previous post. The Controller Military Accounts accepted his request and vide letter dated 01.12.2012 re-fixed respondent Civil Petition No. 1958/2016 2 No.1’s pay from Rs. 32,000/- to Rs.35,200/- per month and paid all his past arrears. However, 2½ years later the Controller of Military Accounts vide letter dated 12.06.2015 informed respondent No.1 that he was inadvertently granted the benefit of pay protection and his revised salary was reverted back to Rs.32,000/- per month. The differential amount that was paid in 2012 was directed to be recovered from him. Aggrieved by such decision, the respondent No. 1 filed departmental representation. Having received no response, he filed Service Appeal in the Federal Service Tribunal, Islamabad, which was accepted and consequently, the order dated 12.06.2015 was set aside and respondent No. 1 was held to be entitled to pay protection. In granting such relief, the Service Tribunal invoked the principle embodied in Section 11-A of the Civil Servants Act, 1973. 3. Aggrieved by such decision, the department filed the present petition. 4. Learned counsel for the petitioner contended that the benefit of pay protection of his previous post on the basis of respondent No. 1’s holding BS-17 post was a mistake on the part of the Controller of Military Accounts as the respondent No. 1 was holding BPS-17 post on ad hoc basis and being an ad hoc employee his services were terminated and not rendered surplus and then he was re-employed on BPS-14 post, therefore, he was not entitled to seek benefit of pay protection in terms of the principle laid down in Section 11-A of the Civil Servants Act and the Controller of Military Accounts rightly recalled his earlier decision vide his letter dated 12.06.2015. Section 11A reads as follows:- "11A. Absorption of civil servants rendered surplus.- Notwithstanding anything contained in this Act, the rules, agreement, contract or the terms and conditions of service a civil servant who is rendered surplus as a result of re-organization or abolition of a Division, department, office or abolition of a post in pursuance of any Government decision may be appointed to a post, carrying basic pay scale equal to the post held by him before such appointment, if he possesses the qualifications and fulfils other conditions applicable to that post: Provided that where no equivalent post is available he may be offered a lower post in such manner, and subject to such conditions, as may be prescribed and; where such civil servant is appointed to a lower post the pay being drawn by him in the higher post immediately preceding his appointment to a lower post shall remain protected.". 5. The principle laid down in Section 11-A is clear. Where a civil servant is declared surplus pursuant to any government decision, then he is Civil Petition No. 1958/2016 3 to be accommodated to a post carrying equal pay scale. In case equal post is not available then he can be appointed to a lower post but the pay which he was drawing in the higher post shall remain protected. In our view, this benefit cannot be denied to respondent No. 1 merely because previously he was holding a post on ad hoc basis, by virtue of Section 11(1)(iii) and (3) of the Civil Servants Act. Section 11(1)(iii) and (3) reads as under:- “11. Termination of service.- (1) The service of a civil servant may be terminated without notice- (i) ……………………………………………………. (ii) …………………………………………………….. (iii) if the appointment is made ad hoc terminable on the appointment of a person on the recommendation of the selection authority, on the appointment of such person. (3) Notwithstanding the provisions of sub-section (1), but subject to the provisions of sub-section (2), the service of a civil servant in temporary employment or appointed ad hoc shall be liable to termination on fourteen days' notice or pay in lieu thereof.” 6. The above provisions of Section 11 are ample proof that ad hoc employee is regarded as civil servant. An ad hoc employee in government service is also to be treated as civil servant. In a decision rendered by this Court in the case of Muhammad Sarfraz Vs. Government of Punjab (2001 PLC (CS) 1224), it was also held that ad hoc employees in government service are also civil servants. In our view all the requirements of Section 11-A and its proviso exist in the present case. 7. As to respondent No. 1’s entitlement for pay protection, a bare reading of the letter dated 28.06.1992 would show that the same was though titled as termination of ad hoc lecturers, but in effect it was issued pursuant to the government’s decision and based on such decision respondent No.1, who was then holding BPS-17 post, was offered a post in lower pay scale i.e. BPS-14. Thus respondent No. 1 was appointed to a lower post, not on account of any disciplinary action against him or that he did not possess the requisite educational qualifications to hold a BPS-17 post but purely on account of the general decision of the government that rendered him surplus. By then respondent No. 1 had already put in five long years of service to the satisfaction of the department. His status remained that of an ad hoc employee for no fault of his own and ultimately in 2003 he succeeded in seeking appointment through FPSC and was appointed as a regular employee Civil Petition No. 1958/2016 4 in BPS 17 post. This peculiar service record by itself entitles the respondent No. 1 to seek benefit of pay protection on the basis of the principle laid down in Section 11-A of the Civil Servants Act, 1973, which entitles an employee to claim protection of his pay that he was getting in his previous post. Hence, the Service Tribunal rightly extended the benefit of the principle laid down in Section 11-A of the Civil Servants Act, 1973 though on somewhat different reasoning. 8. We, therefore, find no legal basis to interfere with the conclusion drawn by the Service Tribunal in the impugned judgment. This petition is dismissed and leave is refused. JUDGE JUDGE JUDGE Islamabad, the 19th of January, 2017 Approved For Reporting Khurram Civil Petition No. 1958/2016 5 (3) “2. Definitions.-(1) In this act, unless there is anything repugnant in the subject or context,- (b) "civil servant" means a person who is a member of an All- Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include- (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, or on work-charged basis or who is paid from contingencies; or (iii) a person who is "worker" or "workman" as defined in the Factories Act, (XXV of1934), or the Workman's Compensation Act, 1923 (VIII of 1923);” + +-

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAQBOOL BAQAR CIVIL PETITION NO. 1965 OF 2019 On appeal from the judgment dated passed 03.05.2019 by the Lahore High Court Lahore in C.R.1339/2017) Jubilee General Insurance Co. Ltd, Karachi …Petitioner(s) VERSUS Ravi Steel Company, Lahore …Respondent(s) For the petitioner(s): Mr. Hamid Khan, Sr. ASC a/w Barrister Rana Tariq, Legal Advisor For the respondent(s): Mr. Zaheer-ud-Din Babar, ASC Date of Hearing: 09.10.2019 JUDGMENT Mushir Alam, J.— Present Petitioner, Jubilee General Insurance Co. Limited, Karachi (hereinafter the ‘insurer’) have impugned the three (3) Member Bench judgement of Lahore High Court dated 3.5.2019, which decided by majority of 2:1, in C.R. No.1339 of 2017, that insurer, after exhausting ultimate remedy in review jurisdiction of Apex Court by re-agitating judgment of the learned Insurance Tribunal dated 03.10.2012 through application under section 12(2) CPC on a ground that even though defense of limitation was available but was not raised. Therefore, the application made is not maintainable and order dismissing application under section 12(2) CPC was passed by the learned trial Court was upheld through impugned judgment. CIVIL PETITION NO. 1965 OF 2019 2 2. Facts in brief are that the respondent-Ravi Steel Company a property concern (hereinafter referred to as the ‘insured’) insured consignment of two ‘furnace shell’ (herein after referred to as ‘insured goods’) destined for Kazakhstan under “Marine Cargo Policy” dated 18.6.2005 (Ex-A-2), issued by the Petitioner-Insurer. The insured goods, en-route to Kazakhstan were damaged, the incident was reported promptly to the insurer on 5.9.2005 and the claim was lodged with insurer on 9.9.2005 (Ex-A-4). All documents as required by the insurer for processing the claim and assessing the damages were furnished through Ex-A-4 to Ex-A-6. To assess the loss/damage, ‘insurer’ appointed a Surveyor on 23.9.2005 (Ex- A-8) and it is matter of record that based on surveyor’s report (which was not supplied though demanded by the assured nor produced in evidence), the insurer repudiated the claim on 19.08.2008 (Ex-A-9), which prompted the insured to file a claim under section 122 of the Insurance Ordinance, 2000, (hereinafter referred to as Ordinance, 2000) for the recovery of sum assured along with liquidated damages in terms of Section 188 of the Ordinance, 2000, before the learned Insurance Tribunal, Lahore on 11.11.2008. The claim was contested on merits, reply was filed, issues were framed, evidence was led by both the parties. Claim Application was allowed by the learned Insurance Tribunal on 3.10.2012 for the sum assured together with liquidated damages as provided for under section 118 of the Ordinance, 2000 “Calculated at the rate of five (5) percent on high base rate” till realization. Petitioner belatedly filed Regular First Appeal No.992 of 2012 under Section 124 of the Ordinance, 2000 which was dismissed on 6.4.2016, which was challenged before this Court CIVIL PETITION NO. 1965 OF 2019 3 through Civil Petition No.1287-L of 2016, which was dismissed on 29.6.2016 and so also Civil Review Petition No.26-L of 2016 met the same fate vide order 24.01.2017. 3. From the record it appears that in the intervening period when First Regular Appeal No.992 of 2012 was pending before the High Court, execution application was filed by the insured, which was resisted by the insurer, through Objection Petition, on the ground, inter alia, that the original Insurance Claim was time barred and few days later i.e. on 15.12.2012 chose to challenge the order of the Insurance Tribunal dated 03.10.2012 through yet another channel by invoking section 12(2) CPC on 15.12.2012 (pages 103-116) on grounds inter-alia that: i) the claim was patently barred by time; and ii) want of jurisdiction, beside on merits. It is a matter of record that before the RFA No. 992 of 2012 could be decided, Objection Petition was dismissed on 20.5.2016, which order was not challenged any further and it attained finality. It is a matter of record that the application under section 12(2) CPC was kept pending, which fact was not disclosed before the learned High Court when the RFA No. 992 of 2012 was heard and dismissed on 6.4.2016, such fact was also not disclosed in CPLA No. 1287-L of 2016, which was dismissed on 29.6.2016, Civil Review Petition No.26-L of 2016 filed met the same fate vide order dated 24.01.2017. 4. After exhausting two remedies against the order of the Insurance Tribunal dated 3.10.2012, one right up to review jurisdiction of this Court, as noted above and second through channel of objection, and having failed throughout, the Petitioner CIVIL PETITION NO. 1965 OF 2019 4 resorted to challenge the very order of the Insurance Tribunal by resurrecting the application under section 12(2) CPC, which application was dismissed on merits by the learned Insurance Tribunal, vide order dated 8.3.2017 on the ground, inter alia, that Objection Petition on similar facts and grounds was dismissed by the learned Tribunal observing that “from the contents of application and from perusal of the record available before this Tribunal, the element of fraud, misrepresentation or want of jurisdiction in terms of section 12(2) CPC are missing” vide order dated 08.03.2017 which order was maintained in Civil Revision No.3093 of 2016 by a majority of 2:1 by the learned Bench of the Lahore High Court vide judgement dated 3.5.2019 impugned before us. 5. Mr. Hamid Khan, learned Sr. ASC for the petitioner contended that scope and parameters of Section 12(2) CPC are different. According to him, the petitioner in RFA No. 992 of 2012 was non-suited on the ground of limitation. According to him original insurance claim of the respondent was also hit by limitation, which aspect of the matter was not considered by the learned Insurance Tribunal and so also by the bench of the Lahore High Court. According to learned ASC, the contingency to file insurance claim was reported on 9.9.2005, limitation to file insurance claim under Article 86 (b) of the Limitation Act, 1908 is three years from ‘the date of occurrence causing loss’, the Insurance Claim Application under section 122 of the Ordinance 2000, was filed on 11.11.2008, which was delayed by two months. It was urged that it was duty of the Insurance Tribunal under Section 3 of the Limitation Act to dismiss the Claim Application outright. It was CIVIL PETITION NO. 1965 OF 2019 5 argued that the learned Insurance Tribunal could not have assumed the jurisdiction to entertain a time barred claim. It was next urged that the insurer being bailee had no insurable interest. 6. Learned Sr. ASC for the petitioner next urged that when multiple remedies against a judgement, decision or an order are available then exhausting one remedy, does not bar other legal remedies, which could always be pressed into in service one after the other irrespective of outcome of one remedy. According to him, reliance in the impugned judgment on the case cited as Trading Corporation of Pakistan vs. Devan Sugar Mills Limited & others (PLD 2018 Supreme Court 828) is also misplaced. According to him, the case of Maharunisa & another vs. Ghulam Sughran & another (PLD 2016 Supreme Court 358), as relied upon by learned minority Judge was apt and to the point. It was, therefore, urged that petitioner was well within its right to challenge the order of learned Insurance Tribunal under Section 12 (2) CPC, which is separate, distinct and coextensive remedy could be invoked independently and successively to assail order of the Insurance Tribunal on different grounds of defence including limitation, which though available were not raised nor adjudicated in first set of defence at trial. 7. Mr. Zaheer-ud-Din Babar, learned counsel appearing on behalf of the respondent ‘insured’, supports the impugned judgment. It was urged that, insurance claim was lodged with the insurer promptly, on 9.9.2006 (Ex-A-4). The claim was not refuted and surveyor was appointed by the insurer to assess the loss. According to him, it was the Petitioner/Insurer who delayed in CIVIL PETITION NO. 1965 OF 2019 6 settlement of claim beyond 90 day as required under Section 118 of the Ordinance, 2000 law and without providing any survey report, belatedly refuted the claim on 19.2.2008. It was urged that the Insurer was very much party to the proceedings before the Insurance Tribunal and has contested the claim up to Review jurisdiction of this august Court, and cannot collaterally challenge the very judgment dated 3.10.2012 of the Insurance Tribunal under section 12(2) CPC raising ground inter-alia of limitation. Learned ASC for the Respondent urged that the Petitioner kept the insurer on false hope and adopted misleading and deceptive conduct amounting to fraud that prevented the insured to approach the Insurance Tribunal earlier and that they cannot be allowed to take benefit of such misleading and deceptive conduct. It was contended that abandoning plea of limitation at trial also amounts to waiver, as under facts and circumstances, question of limitation was mixed question of facts. Had it been raised at the earliest opportunity at the trial, insurer would be in a position to contest and defend such a dishonest plea. It was argued that present case is fully covered on all fours by dicta laid down in a case reported as Trading Corporation of Pakistan (Supra), wherein this Court expounded ‘doctrine of election of remedy’ and concluded that when out of multiple available remedy one of the remedy is invoked and exhausted a party cannot be allowed to hop and shop another remedy which may be available. Therefore, impugned judgment by majority of 2:1 rightly dismissed the application under Section 12 (2) CPC, calls for no exception. 8. Having heard the arguments and perused the record, attending the challenge of the learned counsel for the Petitioner on CIVIL PETITION NO. 1965 OF 2019 7 the ground of limitation. It is a matter of record that contingency of damaged to the ‘insured goods’ occurred and was reported during the currency of insurance policy promptly to the insurer on 9.9.2006. Insurer did not repudiate the insurance claim but, to assess the loss appointed the surveyor on 7.9.2006. (Ex-A-9) In terms of Section 118 of the Insurance Ordinance, 2000 insurer is obligated to, scrutinize, settle and pay the insurance claim within a period of 90 days from the date on which payment becomes due, or when the beneficiary of insurance claim, complete papers for claiming the payment due under the insurance policy. It is evident from the record that all the documents, as required by the Insurer to scrutinize, settle and pay the insurance claim were provided by the Insurer on 13.10.2005 (Ex-A-5) and 26.9.2005 (Ex. A-6). It is a matter of record even that the Insurer, through letter dated 23.10.2005 (Ex-A-13) alongwith detail of damage caused, informed the Insurer, that survey has been carried out by the surveyor yet the claim was not paid and the Petitioner, Insurer took its time to repudiate the claim as late as on 19.2.2008 i.e. more than two and a half year as against 90 days as required under section 118 of the Ordinance, 2000. Common law principle of “utmost good faith” (also recognized as ‘Uberrimae Fidei’) has received statutory recognition, under Section 75 of the Insurance Ordinance 2000; it means that every person who enters into a contract (of insurance) has a legal obligation to act with utmost good faith towards each other and parties (to insurance) contract are required to deal with each other in an honest and upright manner, disclose all material facts to each other and not to take unfair advantage over another person or to fulfill a promise to act, CIVIL PETITION NO. 1965 OF 2019 8 even when some legal technicality is not fulfilled. (see section 76 ibid also) Additionally, Insurer is obligated not to engage in a misleading or deceptive conduct that may put the insured or beneficiary of Insurance Policy into a disadvantageous position (see section 76 ibid). Even ambiguities in insurance policies are construed in favour of the insured (Section 77 ibid). 9. It is true that limitation to file Insurance Claim arising under the Insurance Policy before the Insurance Tribunal is not provided for under the Ordinance, 2000, however three years period is provided for under Article 86 (b) of the Limitation Act, 1908 against ‘the occurrence causing the loss’ on the policy of insurance “when the sum insured is payable after proof of the loss has been given to or received by the insure”. Indeed, in adversarial proceedings a litigant has to cross the barrier of limitation, before his rights are adjudicated. Like Order II Rule (2) CPC mandates the Plaintiff to include the whole claim and seek all reliefs in a suit to which he is entitled, where a plaintiff omits to sue in respect of the portion so omitted to claim any relief to which he may be entitled, he cannot, except by leave of the Court, afterwards sue for any relief so omitted. Cumulative effect of Order VI Rule 4 CPC read with Order VIII Rule 2 and other enabling provisions, by same stroke requires that the “defendant must raise” in written statement and specifically and particularly plead “all matters, which show that the suit not to be maintainable or that the transaction is either void or voidable in point in law, and all such grounds of defence as, if not raised, would be likely to take opposite party by surprise or would raise issues of facts not arising out of the plaint as for instance fraud, limitation, release, payment, performance or facts showing CIVIL PETITION NO. 1965 OF 2019 9 illegality.”(Order VIII Rule 2 CPC) plea of misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary” (Order 6 R 4 ibid). These rules of prudence require both the plaintiff and defendant to plead all facts that may constitute cause of action for any relief and for the defendant which may constitute a defence to specifically refute any claim on merits as well raising specific defense denouncing claim on the assertions of fraud, limitation, release, payment, performance or facts showing illegality. Unless such particulars are specifically pleaded in the plaint or in written statement as a defence other party may it be plaintiff or defendant would have no opportunity to controvert the same, as neither the issue could be framed nor, evidence could ordinarily be allowed to be raised or led at trial or attended in further appeals or revisions as the case may be. Failure to raise such plea at the first opportunity (either in plaint or written statement as the case may be) to assert any right or claim any relief where such rights and relief is founded on such assertion or raising such plea as a defence to contest and or controvert any such claim may well amount and be successfully be defeated on doctrine of constructive res-judicata, in subsequent proceedings (see Explanation IV to section 11 CPC and Mst. Kulsoom and 6 others vs. Mrs. Marium and 6 others (1988 CLC 870, para 5). 10. In addition to doctrine of constructive res-judicata, doctrine of equitable estoppel having received statutory recognition under Article 114 of the Qanun-e-Shahadat Order, 1984 is gainfully applied in Insurance matter where the insurer uses the tool of surveyor, assessors and or investigators to investigate into claim of CIVIL PETITION NO. 1965 OF 2019 10 loss and assessment of damages and induce the insured to believe that the claim will be paid and or settled once the survey, assessment or investigation into loss or damages is completed in due course and then belatedly, refutes the claim putting the insured at disadvantage to bring claim within limitation. In all fairness, in such circumstances the insurer may be equitably estopped from raising plea of limitation as a defense to the Insurance claim in Court of law. In case in hand plea of limitation was not raised in the first set of proceedings. (those interested may gainfully see In US jurisdiction where analogues provision contained in section 623 of California Evidence Code was propounded in a case Irwin vs. Department of Veteran’s Affairs, [498 U.S. 89,96 (1990)] “An estoppel against a limitations defense usually ‘arises as a result of some conduct by the defendant, relied on by the plaintiff, which induces the belated filing of the action Spray, Gould & Bowers vs. Associated Int’l Ins. Co., [71 Cal. App.4th 1260, 1268 (1999)]. Where an insurer is responsible for concealing the existence of an insured’s cause of action, Courts of this State have found that the insurer may be estopped from asserting statutory and contractual limitation periods, (there are plethora of authorities on the point including Vu, [26 Cal.4th at 1152], Hydro-Mill Co., Inc. vs. Hayward Tilton & Rolapp Ins. Assoc., Inc., [115 Cal. App. 4th 1145, 1165-66 (2004) and more recently from Indian jurisdiction National Insurance Co. Ltd vs. Hindustan Safety Glass Works Ltd. [2017] 5 SCC 776 paragraph 17 & 18). 11. Since the Petitioner/defendant did not raise the bar of limitation, in the written statement, before the Insurance Tribunal at trial, which in the given circumstances is a mixed question of CIVIL PETITION NO. 1965 OF 2019 11 fact and law and the same not having been raised, the Respondent/Plaintiff had no occasion to meet such challenge in earlier set of proceeding that culminated in his favour up to this Court in Review jurisdiction. Having failed to obtain any favourable order in the first complete cycle of remedy up to apex Court and having failed in its attempt in second challenge by way of objections to the execution, the Petitioner is not only estopped to seek annulment of judgment of Insurance Tribunal collaterally by adopting another or alternate channel of remedy to question the judgment of Insurance Tribunal on the ground of limitation by way of an application under section 12 (2) CPC, which ground, though available at trial was not raised could not be allowed to be raised in a collateral challenge. 12. Even otherwise, it is by now well entrenched in our jurisprudence that where multiple remedies are available against any order judgement and or decision than it is the prerogative of the suitor to elect and pursue one out of the several hierarchy or channel of remedies. A suiter having availed and exhausted one of the several hierarchy or channel of remedy, doctrine of constructive res-judicata, as discussed above debars him to adopt one after another hierarchy, course or channel of remedies. In case in hand Petitioner having challenged unsuccessfully the order of Insurance Tribunal up to this Court, then unsuccessfully availed second channel of remedy by challenging the Order of Insurance Tribunal through objection petition before the executing Court under section 47 CPC, which order too has attained finality and now invoked third hierarchy of remedy by way of application under section 12 (2) CPC. In somewhat similar circumstances, in the case CIVIL PETITION NO. 1965 OF 2019 12 of Trading Corporation of Pakistan (Supra). It was held in para-8 at page-833 as follows: “The moment suitor 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 host of actions or remedies available under the law. The choice to initiate and pursue one out of host of available concurrent or co-existent proceeding/actions or remedy from a forum of competent jurisdiction vest with the suitor. Once choice is exercised and election is made then a suitor is prohibited from launching another proceeding to seek a 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, which doctrine is culled by the courts of law from the well-recognized principles of waiver and or abandonment of a known right, claim, privilege or relief as contained in Order II, rule (2) C.P.C., principles of estoppel as embodied in Article 114 of the Qanun-e- Shahadat Order 1984 and principles of res- judicata as articulated in section 11, C.P.C. and its explanations. Doctrine of election apply both to the original proceedings/action as well as to defenses and so also to challenge the outcome on culmination of such original proceedings/action, in the form of order or judgment/decree (for illustration it may be noted that multiple remedies are available against possible outcome in the form of an order/judgment/decree etc. emanating from proceedings of civil nature, which could be challenged/defended under Order IX, rule 13 (if proceedings are ex-parte), section 47 (objection to execution), section 114 (byway of review of an order), section 115 (revision), under Order XXI, rules 99 to 103 C.P.C. and section 96 C.P.C. (appeal against the order/ judgment) etc. Though there is no bar to concurrently invoke more than one remedy at the same time against an ex-parte order/ judgment. However, once election or choice from amongst two or more available remedy is made and exhausted, judgment debtor cannot ordinarily be permitted subsequent to venture into other concurrently or coexisting available remedies.” CIVIL PETITION NO. 1965 OF 2019 13 13. Accordingly, no exception to the finding of the Bench of the High Court is called for. Instant petition is dismissed and leave to appeal is declined. The above are the reasons for our short order of even date, which reads as follow: “For reasons to be recorded later, this petition is dismissed and leave declined.” JUDGE ISLAMABAD 9th October, 2019 arshed/* Approved for Reporting JUDGE

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITIONS NO.2021-L TO 2025-L OF 2015 (On appeal against the judgment dated 17.06.2015 passed by the Lahore High Court, Lahore in WTA Nos. 189 to 193/2003) M/s Liberty Car Parking (Pvt.) Ltd. through its Director …Petitioner(s) (In all cases) VERSUS Commissioner Inland Revenue (Ex-Commissioner of Income Tax / Wealth Tax), Lahore etc. …Respondent(s) (In all cases) For the Petitioner(s): Mian Ashiq Hussain, ASC (Through video link from Lahore) For the Respondent(s): Mr. Amir Malik, ASC Date of Hearing: 15.12.2020 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through these petitions, the petitioner has challenged the impugned judgment dated 17.06.2015 whereby the Wealth Tax Appeals filed by the petitioner were dismissed and the order of the Income Tax Appellate Tribunal, Lahore, dated 09.05.2003 was maintained. 2. Briefly stated the facts of this case are that in response to Notice under Section 17 of the Wealth Tax Act, 1963, returns of wealth tax were filed by the petitioner for five years commencing from 1993-94 to 1997-98 declaring ‘nil’ wealth. Since the petitioner had set up car parking on the area adjacent to plaza in the same premises, the Notice issued by the Wealth Tax Officer relates to CIVIL PETITIONS NO.2021-L TO 2025-L OF 2015 - 2 - declaration qua the market value of the car parking attached with the aforesaid plaza. The said car parking was leased out by LDA to the petitioner initially for a period of 50 years. The Notice issued by the petitioner was replied with the stance that as the said car parking area is on lease, therefore, the petitioner is not liable to charge of wealth tax. However, the Assessing Officer vide a consolidated order dated 26.12.1998, assessed the car parking of the petitioner on the basis of cost appearing in the balance sheet. Feeling aggrieved, the petitioner filed appeals before the Commissioner Appeal Zone II, Lahore, who vide order dated 07.02.2000 vacated the assessments for the years 1993-94 to 1995-96 and set aside the assessments for the years 1996-97 and 1997-98 for de novo action. Against this order, both the parties preferred appeals before the Income Tax Appellate Tribunal, Lahore. The learned Appellate Tribunal vide order dated 09.05.2003 while holding that the method of valuation adopted by the assessing officer for assessing value of petitioner’s immovable property was not justified, remanded the case back to him, to pass a fresh order after hearing the petitioner and examining the evidence produced by the petitioner. This led to filing of Wealth Tax Appeals by the petitioner before the Lahore High Court, Lahore. The learned High Court vide impugned judgment dismissed the appeals on a technical ground that the appeals filed by the petitioner should have been accompanied by a resolution of the Board of Directors, authorizing the Chief Executive of the Company to file the appeals and as the same was not done, the appeals were held not maintainable. Hence, these petitions seeking leave to appeal. CIVIL PETITIONS NO.2021-L TO 2025-L OF 2015 - 3 - 3. Learned counsel for the petitioner, who appeared through video link from Lahore, has inter alia contended that the case of the petitioner is covered under the charging section because it had lease hold rights and the same cannot tantamount to ownership; that instead of deciding this question, the learned High Court dismissed the appeals on technical grounds by holding that the appeals have not been accompanied by a resolution of the Board of Directors, authorizing the Chief Executive of the Company to file the appeals; that the right of an assessee to file appeal to High Court could not be nullified by reference to general law like the Companies Ordinance, 1984 or CPC; that the appeals being continuation of assessment proceedings were exclusively governed by the special provisions of Wealth Tax Act, 1963; that subjecting tax appeals to CPC or Company law will lead to unjustified consequences of hampering smooth functioning of tax proceedings and that the learned High Court has misread and misplaced the law, therefore, the judgment passed by the High Court is liable to be set aside. 4. On the other hand, learned counsel for the respondent has mainly contended that the order of the learned High Court is well reasoned and based upon the proper appreciation of law and the same cannot be disturbed through these petitions. 5. We have heard learned counsel for the parties and have perused the case file as also the relevant law. 6. The main issue involved in the present petitions is whether the learned High Court has rightly dismissed the appeals filed by the petitioner before it on the technical ground that they were not accompanied by a resolution of the Board of Directors, CIVIL PETITIONS NO.2021-L TO 2025-L OF 2015 - 4 - authorizing the Chief Executive of the Company to file the appeals. Before proceeding further, it would be in order to reproduce the relevant paragraph of the impugned judgment, which reads as follows:-:- “5. ………………….. We must bear in mind that a company is a juristic person and the normal functions of the corporate affairs of the company are regulated and conducted by the Board of Directors duly constituted under the Companies Ordinance, 1984. The company, therefore, as a person acts through its Board of Directors. It is trite principle that any acts which any officer of the company is to perform, shall be performed on the authorization of the Board of Directors of the company and by no other means. Unless the Board of Directors by a proper resolution authorizes the doing of an act, no officer of the company can undertake the act which will be ultra vires otherwise. In the instant case, admittedly the resolution of Board of Directors authorizing the chief executive to file the instant appeal has not been placed on the record and, therefore, it will be presumed that there was no authorization in favour of the chief executive to file the instant appeal.” 7. The learned High Court while knocking out the petitioner mainly observed that the company is a juristic person and its functions are regulated and conducted by the Board of Directors and the company acts through its Board of Directors. The Court further held that any officer of the company shall perform any act only on the authorization of the Board of Directors and by no other means and the same shall be by a proper resolution. We may observe that by now the law has been well settled. This Court in Rahat and Co. Vs. Trading Corporation of Pakistan (PLD 2020 SC 366) has categorically held that a company is a juristic entity and it can duly authorize any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Code of Civil Procedure. It has also been held that a person may be expressly authorized either by the Board of Directors or by a power CIVIL PETITIONS NO.2021-L TO 2025-L OF 2015 - 5 - of attorney. However, in absence thereof and in cases where pleadings have been signed by one of its officers, the same can be accredited by the company by express or implied action. It would be advantageous to reproduce the relevant portion of the said judgment. The same reads as under:- "10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer." (Underlined is to provide emphasis) 8. We have been informed that although the appeals filed before the High Court were not authorized by Board of Directors by proper resolution but they were duly signed by the Chief Executive Officer of the petitioner company. According to Section 2(18) of the Wealth Tax Act, 1963, the definition “Principal officer" is used with CIVIL PETITIONS NO.2021-L TO 2025-L OF 2015 - 6 - reference to a company, means the secretary, manager, managing agent or managing director of the company, and includes any person connected with the management of the affairs of the company upon whom the Deputy Commissioner has served a notice of his intention of treating him as the principal officer thereof. The definition of ‘principal officer’ clearly shows that the Chief Executive Officer of the petitioner company is the principal officer and if he had signed the appeals before the High Court, the same would be accorded as express ratification by the company. In this view of the matter, the learned High Court ought to have decided the appeals on merits and not on technical grounds. 9. For what has been discussed above, we are of the considered view that the impugned judgment of the High Court is not based on the proper appreciation of law. Consequently, we convert these petitions into appeals, set aside the impugned judgment and remand the case back to the High Court to decide the appeals filed by the petitioner afresh in accordance with law. JUDGE JUDGE JUDGE Islamabad, the 15th of December, 2020 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE DOST MUHAMMAD KHAN. MR. JUSTICE IJAZ UL AHSAN. Civil Petition No.2064 of 2016 Against judgment dated 28.04.2016 of Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in EFA No.4 of 2016. Siraj Ahmed through LRs Petitioner(s) VERSUS Faysal Bank Limited & others Respondent(s) For the Petitioner(s) : Mr. M. Akram Sheikh, Sr.ASC Syed Rafaqat H. Shah, AOR For Respondent#1 : Ch. Faiz Ahmed Sanghera, ASC For Respondent#2 : Ch. Ali Muhammad, ASC. Date of Hearing : 08.12.2017. JUDGMENT IJAZ UL AHSAN, J-. The petitioner seeks leave to appeal against a judgment of Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 28.04.2016. Through the impugned judgment, an appeal (EFA No.4 of 2016) filed by the petitioner was dismissed. 2. Briefly stated the facts necessary for decision of this lis are that Respondent No.1-Faysal Bank Limited filed a suit for recovery of Rs.1,40,19,636.36/- against Siraj Ahmed, predecessor in interest of the petitioner and others. The suit was ultimately decreed on 13.06.2013 for a sum of Rs.1,03,84,569.07/-. The respondent- Bank initiated execution proceedings. The predecessor in interest of the petitioner filed objections which were dismissed on 24.10.2013. The said order was challenged by way of Writ Petition No.6278 of Civil Petition No.2064 of 2016 2 2013. Vide order dated 25.10.2013, the High Court stayed auction proceedings. 3. It appears that notwithstanding the stay order, the auction proceedings were completed. Although the petitioner moved a contempt application before the High Court, but subsequently did not press the same and the constitutional petition as well as the contempt application were dismissed on 20.01.2015. It also appears that during proceedings in the execution petition, the predecessor in interest of the petitioner filed an application under Order XXI Rule 90 of CPC on 23.01.2015. However, subsequently on 03.11.2015 a request was made to treat the same as an application under Order XXI Rule 89 of CPC. Although the conversion was allowed, the application was dismissed on 05.04.2016. The sale was confirmed and sale certificate was issued in favour of Ata ur Rehman, Respondent No.2. 4. The record reveals that during pendency of the application under Order XXI Rule 89, CPC the petitioner also tendered an amount of Rs.1,03,84,569.07/- in addition to a further sum of Rs.10,84,569.09/- equivalent to 5% of the decretal amount. The objections as well as the application under Order XXI Rule 89, CPC were dismissed. The said dismissal was challenged by way of an appeal before the High Court, which was dismissed on 28.04.2016. Hence, this petition. 5. The learned counsel for the petitioner has laid great emphasis on the fact that the requirements of Order XXI Rules 66, 67 & 68 of CPC were not fulfilled by the executing Court. He points out that no reserve price was fixed, no date or time of auction was mentioned, the notices were neither affixed at the place of auction nor Civil Petition No.2064 of 2016 3 on the notice board of the Court house; and that the property was sold at a throwaway price. He adds that the auction was collusive, did not actually take place and was meant to defraud the predecessor in interest of the petitioner. He finally maintains that auction was conducted in violation of the stay order issued by the High Court and has resulted in a grave miscarriage of justice. 6. The learned counsel for the respondent-Bank has defended the impugned judgment. 7. The learned counsel appearing on behalf of Respondent No.2/auction purchaser Ata ur Rehman has vehemently argued that predecessor in interest of the petitioner had not contested the proceedings seriously in view of the fact that he neither prosecuted his application under Order XXI Rule 90, CPC nor deposited the decretal amount together with 5% of the auction price within the time provided by law. He maintains that the allegation of collusive sale at a throwaway price is baseless in view of the fact that Respondent No.2 had paid more than the value fixed by the predecessor in interest of the petitioner himself in the constitutional petition filed by him before the High Court. 8. We have heard the learned counsel for the parties and gone through the record with their assistance. The suit filed by the respondent-Bank was admittedly decreed on 13.06.2013 for a sum of Rs.1,03,84.569.07/-. It appears that the said judgment and decree was not successfully assailed before any higher forum by the predecessor in interest of the petitioner. However, when execution proceedings commenced he did file objections on the ground that reserve price had not been fixed, certain properties owned by the Civil Petition No.2064 of 2016 4 predecessor in interest of the petitioner were not included in the proclamation given by the Court auctioneer. The objection petition was dismissed. The predecessor in interest of the petitioner challenged such dismissal by way of a writ petition. He succeeded in obtaining a restraining order from the High Court in the said petition vide order dated 25.10.2013. 9. However, it appears that for some reason which is not clear from the record the auction proceeded and was finalized. Respondent No.2 was declared as the highest bidder having offered a sum of Rs.1,03,84,567.07/-. The predecessor in interest of the petitioners initially challenged the sale through an application under Order XXI Rule 90, CPC however, later he appears to have changed his mind and requested the executing Court to treat the application as one filed under Order XXI Rule 89, CPC. It also appears that in the meantime on 30.11.2015 he had tendered pay orders in the sum of Rs.1,03,84,569.07/- being the price of the property plus a sum equivalent to 5% of the recoverable amount, with the executing Court. The executing Court, however, without assigning valid or cogent reasons dismissed the application and confirmed the sale which order was upheld by the High Court. 10. The record shows that the process of auction left much to be desired. The mandatory provisions of Order XXI Rules 66 to 68, CPC were not strictly adhered to in so far as reserve price does not appear to have been fixed. Further, there is nothing on record to indicate that auction was widely publicized through advertisement in the newspapers and affixation of the proclamation/notices on and in the vicinity of the property to be auctioned and on the notice board of Civil Petition No.2064 of 2016 5 the Court house. It has also vehemently been argued that despite the fact that it was a valuable agricultural property measuring 280 kanals 5 marlas and could have attracted many buyers, had it been properly advertised, the notice of auction was only published in an unknown newspaper under the name and style of REHBAR. Even the said notice which was sans material particulars was published on 24.10.2013 while the auction took place on 25.10.2013. As expected, only three persons participated in the auction proceedings. 11. In Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2 (2013 SCMR 1419) while dealing with similar issue, this Court held as follows:- “Agreed that the expression “reserve price” does not find mention in the relevant rule but the words used in the rule pointedly hint thereto. A sale, in its absence, is apt to give walkover to manoeuvrers to fix any price of their choice. A sale thus effected is no sale in the eye of law especially when the number of bidders is meager, which, indeed is close to nill. A superstructure of sale built on such a shaky infrastructure cannot sustain itself. Neither the buttress of limitation nor the ministerial nature of the rule can prevent it from a fall………………………………………………… ……………………………………………………………………………. Crux of what has been discussed above is that clever manoeuvering forcing way for disposal of a property in execution of a decree for a paltry sum has to be guarded against and jealously so with all the care and circumspection so that it may go for a sum it deserves. The judgments rendered in case of “Messrs Majid and Sons and another v. National Bank of Pakistan through Manager and another”, “Messrs Magi Chemicals Industries v. Habib Bank”, Appu alias Subramania Patter v. O. Achuta Menon and others”, “Mir Wali Khan and another v. Manager, Agricultural Development Bank of Pakistan, Muzaffargarh and another” (supra) may well be referred to in this behalf. The learned counsel when faced with this situation also sought to invoke the application of section 99 of the Code by submitted that no decree of order could be reversed or modified for an error or irregularity not affecting the merits or jurisdiction but we are afraid the argument addressed on the strength of the aforesaid provision could not be of any help to him when it is rather incontestably clear on the record that such errors and irregularities have affected the merits of the case. 12. Although, in the case of Zakaria Ghani v. Muhammad Ikhlaq Memon (PLD 2016 Supreme Court 229) it was observed that the reserve price would not be a material factor, however, the Court went on to observe as under:- Civil Petition No.2064 of 2016 6 “Thus, the reserve price in the normal course has no special significance. However, the position would be different in cases of manifest fraud. If, for example, an auctioneer is acting in collusion with someone and proceeds to dispose of the property at a nominal price without making the requisite publicity then most certainly the Court would intervene to prevent such a fraud taking place. It is for this very reason that if a judgment debtor is apprehensive of foul play he should make a specific request in advance, or as soon as practicable thereafter, to have a reserve price fixed.” 13. In the instant case, the petitioner had raised a specific plea regarding non fixation of reserve price in his objection petition before the executing Court as well as before us. Further, “a series of ploys [which] appear to have been employed to harm one to benefit the other” (see Lanvin ibid). As such, non mention of reserve price is by no means the only defect in the auction proceedings, which have been found by us to be replete with defects, shortcomings and procedural flaws. 14. It has further been pointed out and is evident from the notice of auction that the same did not take place at the location of the property which was sought to be sold. On the contrary, the auction was held in the premises of Faysal Bank Limited, the decree holder which by itself makes it highly suspect. 15. The learned counsel for the petitioner has also placed on record an evaluation report prepared by AJ Associates, who are professional Engineers and Architects approved by Pakistan Bankers Association. They have evaluated the property and valued it much in excess of the amount paid by the auction purchaser. Likewise, the learned counsel for the petitioner has also referred to DC1( )- Civil Petition No.2064 of 2016 7 16. The learned counsel for the Respondents have not been able to specifically deny either the evaluation report or DC rates or the fact that the property was sold for an amount much less than its real value. They have laid much stress on technicalities and asserted that the application under Order XXI Rule 89, CPC was barred by time. However, we have come to the conclusion that the auction was not properly conducted. The property was sold at a throwaway price in an auction which does not prima facie appear to be fair, transparent and above board. We are convinced that serious legal and procedural errors were committed at all stages of the execution proceedings which has caused serious miscarriage of justice. We cannot close our eyes to the same. We are not inclined to agree with the assertions of learned counsel for the Respondents, who has relied on mere technicalities to support his case. In this context, we may refer to Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382) wherein it was held as follows:- “The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. Any system, which by giving effect to the form and not to the substance defeats substantives rights is defective to that extent” 17. For reasons recorded above, while setting aside the impugned judgment of the High Court dated 28.04.016, we convert this petition into an appeal and allow the same. The matter is remanded to the executing Court i.e. Judge, Banking Court, Bahawalpur with the direction to conduct a fresh auction in accordance with law. The auction purchaser/Respondent No.2 shall have the right to participate in the fresh auction (if he so desires). He Civil Petition No.2064 of 2016 8 shall also be given the right of first refusal if he matches the highest bid. In the event he does not wish to participate in the fresh auction or exercise of his right of first refusal, the respondent-Bank shall refund to him the entire amount paid by him together with mark up at the rate fixed by the State Bank of Pakistan from the date of the auction till the amount is refunded to him. Likewise, the respondent-Bank shall also have the right to claim cost of funds in accordance with the judgment and decree passed by the Banking Court. JUDGE JUDGE JUDGE ISLAMABAD, THE 8th of December, 2017. ZR/* NOT APPROVED FOR REPORTING

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mian Saqib Nisar Mr. Justice Mushir Alam Civil Petitions No.2066 to 2068 of 2013 Against judgment dated 12.09.2013 of High Court of Sindh at Karachi, passed in Miscellaneous Appeals No.1, 2 & 3 of 2011. M/s Farooq Ghee & Oils Mills (Pvt) Ltd Petitioner (in all cases) VERSUS Registrar of Trade Marks, Trade Mark Registry & others Respondents (in all cases) For the Petitioner(s): Syed Arshad Hussain Shah, ASC (in all cases) For the Respondent(s): Mr. Munawar Ghani, ASC (in all cases) Date of Hearing: 20.01.2015 ORDER Mushir Alam, J-. Petitioners, Farooq Ghee & Oil Mills (Pvt.) Ltd. have impugned the Judgment dated 12.09.2013, passed by a learned Single Judge of Sindh High Court, in Chambers, in Miscellaneous Appeals No.01, 02 and 03 of 2011 respectively, whereby consolidated order dated 29.9.2009 passed by the learned Registrar of Trade Marks, in the matter of registration of trade mark “HAYAT”, favouring respondent No.2 was maintained and Miscellaneous Appeals were dismissed. 2. Facts in brief, appear to be that M/s International Foodstuff Company of UAE, (hereinafter abbreviated as IFFCO) the Respondent No.2 herein, through Application No.140853 dated 11.04.1997 applied for the registration of Trade Mark “HAYAT” for the goods in Class 29, which inter-alia included “edible oils, and fat; ghee; margarine”. Application inviting opposition for the said trade mark was advertised in Trade Mark Journal dated 1.2.2003 published on 14.6.2003, to which the Petitioner filed Opposition No.481/2003. Civil Petitions No.2066 to 2068 of 2013 2 3. IFFCO, through yet another Application No. 189056 dated 01.8.2005, applied for the registration of trade mark “HAYAT” in Class 29, which was advertised in Trade Mark Journal dated 01.08.2005, published on 21.8.2005 to which also the Petitioner filed opposition No.835/2006. 4. Petitioner adopted for itself Trade Mark styled as “FAROOQ’S Hayat”, for the goods in Class 29 and applied for its registration through Application No. 179894, dated 24.8.2002, which was advertised in Trade Mark Journal dated 01.01.2005, published on 11.11.2005, registration of which was challenged by the Respondent No.2 through opposition No.01/2006 on the strength of their earlier Application for registration No. 140853 dated 11.04.1997 5. All the Applications for the Registration of the competing mark and oppositions thereto, filed by the rival claimants under Section 14(1) of the Act, 1940 were taken up, heard and decided by the learned Registrar of Trade Marks, through common order dated 29.9.09. The Registrar of Trade Marks, in consideration of facts that the IFFCO through evidence has established to the satisfaction of Registrar that they are the originator, proponent and prior user of the Trade Mark “HAYAT”, which mark is not only registered in various jurisdictions but is also used in Middle Eastern and various other countries since 1990. In Pakistan, they started import of its goods (Oil and Ghee) under said brand name or Trademark since 1996, which was supplemented by various invoices evidencing import and use into Pakistan ever since, whereas, the Petitioner adopted the competing mark and applied for its registration on 24.8.2002, after more than a decade of its adaption by the IFFCO. Consequently, both the Applications for the Registration of the Trade Mark “HAYAT” in Class 29, made by the IFFCO and their opposition to the Registration of the Trade Mark “FAROOQ’S Hayat” filed by the Petitioner were allowed and the Application for registration of impugned mark “FAROOQ’S Hayat” filed by the Petitioner and their Opposition Applications were also dismissed. 6. Learned ASC for the Petitioner contended that both the marks are quite distinct. It was argued that thorough search was Civil Petitions No.2066 to 2068 of 2013 3 made in the Trade Marks Registry, and as per search report dated 23.10.2002 it was revealed that registered mark is “nil” and two applications in class 29 were pending for different products, and in market search, according to learned counsel for the Petitioner, similar products were not available, therefore, bonafide and in good faith petitioner had adopted the mark “FAROOQ’S Hayat” for Banaspati Ghee, Cooking Oil, Edible Oil, and Palm Oil. 7. Contentions of the learned ASC for the Petitioner are not substantiated from the record. The official search report (Memorandum) dated 23.10.2002 discloses that IFFCO’s Application No.140853 for the trade mark HAYAT, was already pending in class 29 for “Meat, fish, country and games; meat extracts, preserved dried and cooked fruits and vegetables; jellies; jam; fruit sauces; eggs, milk product; edible oils and fats; ghee; margarine; being goods included in class 29” (page 41 in CPLA in 2067/13) (emphasis supplied), therefore, it cannot be urged that the petitioners were not aware of the adoption and use of Trademark ‘HAYAT’ by IFFCO. 8. It may be observed that section 8(a) of the Trade Marks Act, 1940 forbids registration of trade mark and or a part of the trade mark that may comprise of or embraces, any scandalous design or any matter the use of which would by reason of its being likely to deceive or cause confusion or otherwise , be disentitled to protection in a Court of justice (emphasis added) Likewise section 10(1) of the Trade Marks Act, 1940, puts a clog on the registration of trade mark in respect of any goods and or description of goods which is identical with a trade mark belonging to a different proprietor and either already registered in any of the acceding state in respect of same goods or descriptions of goods or “which so nearly resembled such trade mark as to be likely deceive or cause confusion”. The exception to this general restriction is provided under various provisions of the Act of 1940. Sub-section (2) to section 10 ibid is extended to “honest and concurrent use” or if there exist “other special circumstances” that too is subject to such conditions and or limitations as may be imposed by the Registrar or where in terms of section 13 (b) ibid; the trade mark applied for is “common to trade or otherwise of a non distinctive use” and or that the petitioner is in Civil Petitions No.2066 to 2068 of 2013 4 terms of Section 25 (2) ibid; is a prior user of the competing mark. Petitioner has not been able to demonstrate that his case falls under any of the exception clauses catered for under such statutory exceptions provided under the Act 1940. 9. As regards contention of learned ASC for the Petitioner that both the marks are quite distinct and dissimilar and there is no likelihood of confusion and or deception. According to him, use of prefix FAROOQ’S, the trading name of the Petitioner to the word ‘Hayat’, distinguishes petitioners good from that of IFFCO. He placed reliance on the case reported as Uniliver Ltd v. Sultan Soap Factory (PLD 1991 SC 939) and Ekhlik Ahmed v. Dae Health Laboratory limited London 1980 SCMR 625). It may be observed that, registration of trade mark is not restricted to one word, but it may comprise of composite and or composition of common to use and or invented words, coupled with numerical, device, diagram, picture and or any image etc. and or any combination thereof. Certain trademarks do carry one or more prominent feature that clearly distinguishes goods of one proprietor from their competitors dealing in similar goods, such distinguishing feature in parlance of intellectual property is termed as ‘dominant feature’. In instant case the trade mark “HAYAT” in Arabic/Urdu and English as is adopted and used by IFFCO since 1990 in overseas market and also in Pakistan since 1996 is displayed on its goods with pictorial of vegetables, poultry etc laid in a peculiar fashion. Petitioner has adopted the mark Hayat for same class of goods, by adding “FAROOQ’S” printed in small script as a prefix to the striking and or dominating feature “HAYAT”. It may be observed that merely adding a prefix and or suffix to already existing trademark will not save the Petitioner from the clutches of Section 8 of the Trade Marks Act 1940, which prohibits registration of a trade mark or a part of trade mark, which is “likely to deceive or cause confusion”. Trade Marks Act, 1940 (as succeeded by Trade Marks Ordinance 2001, which came into force on 12.4.2004 per SRO No.212(I)/2004) not only protect consumers, but also traders who adopt a particular trademark, which distinguishes their goods, products and services from other competing traders, producers and service providers. The Act 1940/Ordinance, 2001, provides mechanism, to protect such trademark and forbid anyone attempting to appropriate to itself and Civil Petitions No.2066 to 2068 of 2013 5 or to thrive on the goodwill and reputation created by another and or to deceive customer in assuming and or believing that the goods, merchandise and or services reputed to belong or associated with some one else are his or associated therewith, it is of no consequence that such representation and or assumption is fraudulent or not. Law protects honest traders, encourages due observance of fair play, moral and ethical values in trade and business practices. Courts of law always frown on unfair trade and business practice, that may tend to encourage malpractice, and or usurpation of goodwill and market created by some one else, such wrongdoing cannot be termed any thing short of robbing some one of his hard earned goodwill and or rights in (intellectual) property. In the case of Uniliver Ltd (PLD 1991 SC 939), use of the mark LIGHT was opposed by the proprietor of the trade mark “SUNLIGHT, on the ground that LIGHT is part of the Appellant mark SUNLIGHT. This Court considering all aspects of the case and taking into consideration effect of trade marks comprised of two syllable, took note of the words “create striking effect and cause confusion or deception”. It was held that mere use of the word “LIGHT” will not automatically be taken as SUNLIGHT or the product of the appellant. The Court also took note of the fact that many trade marks were already registered with prefix “SUN” This court allowed respondent the use of LIGHT within certain territorial bound and by adding its trade name SULTAN before LIGHT. Case of Ekhlaq Ahmed 1980 SCMR 625, is of no help to the Petitioner rather goes against the Petitioner. In the cited case, this Court itself examined the competing mark by examining the copy of carton of “VEST” applied for registration, with that of the trade mark “VEET” of the foreign based company and found visual and phonetic similarity between both the mark and declined to interfere in the finding recorded by High Court. 10. From the record it is sufficiently established that the Petitioners have adopted the trade mark “FAROOQ’S Hayat” it encompasses the mark “HAYAT”, which is the striking or dominating feature of the trade mark of IFFCO such trademark was already in use and associated with IFFCO since 1990. In instant case adoption of dominant feature being “HAYAT” is not only strikingly similar but is identical as noted above, merely adding prefix of “FAROOQ’S” in inconspicuous manner to the dominant or striking feature of the Civil Petitions No.2066 to 2068 of 2013 6 existing trademark HAYAT is of no consequence. The prefix “FAROOQ’S” as used by the Petitioner in instant case does not eclipse, overshadows or obscures the dominating mark HAYAT in a way that may distinguish his goods with that of the goods of the IFFCO. If the competing trade mark of the Petitioner is allowed registration, it would not only be encouraging unscrupulous traders to steal some one else’s goodwill and (intellectual) property, but at the same time unwary purchaser would be exposed to more than reasonable probabilities of confusion and deception. It is not only the registered trademark but the trademark proposed to be used is given statutory protection under sections 8(a) & 10(1) of the Trademarks Act, 1940. 11. It was next argued that the artistic work in the name of “FAROOQ’S Hayat”; has found favor under the Copyright Act, 1962, therefore the Petitioner has perfected his right being registered under the Copy Right Act 1962; thus should have been given preference to use the mark “FAROOQ’S Hayat” for its goods as against IFFCO. 12. Arguments are fallacious on more than one counts, firstly the ‘Registration of Copyrights’ work is dated 12, April 2004 (page 48 of the CPLA/2068/13), which is much after the date of adoption of the mark and application for registration of the Mark by the IFFCO and, secondly at the foot of such certificate it is boldly mentioned that “ PLEASE NOTE THAT TITLE/ NAME/ BRAND/MARK GIVEN BY THE APPLICANT IN APPLICATION FORM OR APPEARING ON “WORK” IS NOT REGISTERED BUT ONLY THE EXPRESSION/ STYLE/ GETUP OF THE “WORK” IS REGISTERED/ PROTECTED UNDER COPYRIGHT LAW.” 13. It is not very uncommon that unscrupulous traders or the manufacturers tend to confuse and or mislead consumers of goods of known or popular brands by taking shield and protection under various other laws governing intellectual property rights namely Patent, Merchandise, Designs, Trade Marks and or Copy Rights. There is growing tendency of using such terms interchangeably or treating such terms synonymously. It may be observed that there may be some similarities and overlapping in Civil Petitions No.2066 to 2068 of 2013 7 intent and purport of such rights, but rights of a proprietor/owner in each namely trademark, merchandise mark, Patent and Design and or Copyrights govern different category of intellectual properties and recognize host of different and special rights, obligations and remedies in their respective domain. There is growing tendency of misappropriating rights in one type of intellectual property by seeking protection under different statute governing altogether different intellectual property. Most abused are rights in trade marks under the garb of copyrights, later aims to protect original works of art or creative articulation may be of a trademark in any tangible medium of expression, whereas, trademarks is associated with the goods for the purpose of indicating or so to indicate a connection in the course of trade between the goods and some person having the rights, either as a proprietor or as registered user, to use or apply the trade mark on his goods. Trademarks Act, 1940 protects the proprietor to use the trademark on his goods, and prevent others competitors from using and applying identical and or confusingly similar trade mark on their goods of similar class or description. There is no prohibition under the Trade Marks Act, 1940, for the competitors/traders from making, producing or marketing same or similar goods; only restriction placed is on the use and or adoption of same or deceptively and or confusingly similar trade mark. A trader may make or market or sell same or similar category of goods falling in same class but under different brand name or trademark that clearly distinguishes its goods from same category or class of goods. Petitioner may continue to manufacture, produce and market its competing and similar goods under class 29, but under different brand name or trademark. 15. A copyright material cannot be allowed to be used as an alternate and or in substitution for the trademark, unless, of course, such copyright in the artistic work was also registered under the Trade Marks Act, 1940. It may be noted that Practice of using copyright as a substitute for the trademark was deprecated and defence of the infringer resting on registration of copyright was sternly rejected in large number of cases including cases reported as Tapal Tea (Pvt) Ltd. Shahi Tea Co. (2002 CLD 1113), Pak Drug House v. Rio Chemical (2003 CLD 1531), as upheld by a learned Division Bench in the case reported as Pak Drug Civil Petitions No.2066 to 2068 of 2013 8 House v. Rio Chemical (2003 CLD 1531), M/s ADT Services AG v. ADT Pakistan (Pvt.) Ltd (2005 CLD 1546), Muhammad Wahid v. Adnan Memon (2010 CLD 450). In most of the reported cases, the Courts have rightly desired amendments to protect valuable rights and obligations in intellectual property under various statutes regulating such rights and obligation and arrest, misuse and abuse of such statute to the determent of honest and truthful traders and entrepreneurs. 15. No other grounds were urged. For what has been discussed above, order dated 29.09.2009 passed by the learned Registrar of Trademarks and the impugned order dated 12.09.2013 passed by High Court in appeals, could not be interfered with. Consequently, the listed Civil Petitions are dismissed and leave to appeal is refused. Judge Judge ISLAMABAD, THE 20th of January, 2015 Zubair

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mian Saqib Nisar Mr. Justice Sh. Azmat Saeed Mr. Justice Maqbool Baqar CIVIL PETITION NO.2093 OF 2015 (On appeal from judgment dated 5.5.2015, passed by the Islamabad High Court, Islamabad, in FAO No.25/2012) Pakistan Telecommunication Authority (PTA), Islamabad through its Chairman. … Petitioner Versus Pakistan Telecommunication Company Limited, Headquarters, G-8 Markaz, Islamabad. … Respondent For the Petitioner : Mr. Afnan Karim Kundi, ASC a/w Syed Rifaqat Hussain Shah, AOR Mr. M. Khurram Siddiqui, Director (Law), PTA and Mr. Gul Hassan, Assistant Director (Law), PTA For the Respondent : Mr. Azid Nafees, ASC Date of Hearing : 26.10.2015 JUDGMENT SH. AZMAT SAEED, J.- This Civil Petition for Leave to Appeal is directed against the judgment dated 13.04.2015 (announced on 05.05.2015) whereby an Appeal under Section 7(1) of the Pakistan Telecommunication (Re-organization) Act, 1996, CP.2093/2015. 2 hereinafter called to as “Act of 1996”, filed by the Respondent Pakistan Telecommunication Company Limited (Company) was allowed and the Order dated 03.05.2012 impugned therein was set aside. Furthermore, Regulation 18(2) of the Number Allocation & Administration Regulations, 2005 hereinafter referred to as “Regulations of 2005” was held to be void and ultra vires the Act of 1996. 2. The brief facts necessary for adjudication of the lis at hand are that the Petitioner is an Authority established under Section 3 of the Act of 1996 authorized to carry out, inter alia, the functions of regulating the establishment, operation and the maintenance of the Telecommunication System and for the provision of Telecommunication Services in Pakistan. The Respondent is a Company, which is a Licensee in terms of the Act of 1996 vide License dated 15.04.1997, subsequently, modified on 13.06.2005. Purportedly in pursuance of the Act of 1996, Regulations of 2005 were issued (since substituted by the Number Allocation & Administration Regulations, 2011). In terms of Regulation 18(1) of the Regulations of 2005, a Licensee is required to pay an annual charge specified therein in respect of number(s) CP.2093/2015. 3 allocated to such Licensee. Such charges as specified in the Regulations of 2005 are payable by 31st July, each year. It appears that the Respondent Company did not pay such charges, as claimed by the Petitioner Authority for the years 2005 to 2011 in terms of Regulation 18(1) of the Regulations of 2005, despite repeated demands. Eventually, the annual charges as claimed by the Petitioner Authority were deposited by the Respondent Company in the year 2011. However, the Petitioner Authority on account of late payment of the aforesaid charges had also raised a claim of 10% penalty in terms of Regulation 18(2) of the Regulations of 2005. Such amount was not paid or deposited by the Respondent Company. 3. In the above backdrop, the Petitioner Authority issued a Show Cause Notice dated 09.08.2011 to the Respondent Company under Section 23(3)(c)(i) of the Act of 1996, claiming a balance amount of more than Rs.46 million in terms of Regulation 18(2) of the Regulations of 2005. The Respondent Company disputed the said liability. However, vide Order dated 03.05.2012, the Respondent Company was held liable to pay the said amount of penalty and stood exposed to further CP.2093/2015. 4 proceedings in terms of the Act of 1996 and the Rules and Regulations framed there-under. 4. Aggrieved, the Respondent Company filed an Appeal i.e. FAO No.25 of 2012 under Section 7(1) of the Act of 1996 against the Order dated 03.05.2012 before the learned Islamabad High Court. After hearing the parties, the learned Single Judge of the Islamabad High Court vide judgment dated 13.04.2015 (announced on 05.05.2015), allowed the Appeal and also held Regulation 18(2) of the Regulations of 2005 void being ultra vires the Act of 1996. However, it was held that the Petitioner Authority was vested with the power to proceed under Section 23(3)(c)(i) of the Act of 1996 and levy a fine in terms thereof. The aforesaid judgment dated 13.04.2015 (announced on 05.05.2015) was challenged by the Petitioner Authority through the instant Civil Petition for Leave to Appeal. Pursuant to a detailed Order dated 05.10.2015 of this Court, notices were issued to the Respondent Company, who had entered appearance. 5. The learned counsels for the parties have been heard and the available record perused. 6. It is contended by the learned counsel for the Petitioner Authority that the learned High Court by way CP.2093/2015. 5 of the impugned judgment has misapplied and misinterpreted the provisions of the Act of 1996 as well as the Regulations of 2005. It is added that the said Regulations had been validly issued in exercise of the powers conferred by the Act of 1996 and are not in conflict with the parent statute and Regulation 18(2) of the Regulations of 2005 are not ultra vires the Act of 1996. The learned counsel further contended that the Respondent Company deliberately delayed the payment of annual charges for the years 2005 to 2011 without any legal or factual justification and such delay in payment squarely falls within the purview of Regulation 18(2) of the Regulations of 2005, which perceives of a penalty @ 10% on the amount due, which had been imposed upon the Respondent Company after due process of a service of Show Cause Notice, as envisaged in Section 23 of the Act of 1996 and affording a right of hearing. Hence, the impugned judgment is not sustainable in law and is liable to be set aside. 7. The learned counsel for the Respondent Company controverted the contentions raised on behalf of the Petitioner Authority by contending that the Regulation 18(2) of the Regulations of 2005 is ultra vires CP.2093/2015. 6 the Act of 1996, as has been correctly held by the learned High Court, inasmuch as, it perceived for the imposition of penalty for late payment, which is not provided for in the Act of 1996. In fact, it is contended, that the Petitioner Authority is not entitled under the Act of 1996 to impose or collect any penalty for late payment. In the alternative, it is contended that the amount claimed by the Petitioner Authority as the annual charges for the Numbers Allocation was not lawfully due under the law and has been deposited under protest, therefore, the question of imposition of penalty under the Regulation 18(2) of the Regulations of 2005 did not arise. The learned counsel further contended that in terms of the License issued by the Petitioner Authority to the Respondent Company, the former was only entitled to impose and collect such charge/fine @ 2% and not @ 10%, as has been imposed vide Order dated 03.05.2012, which has been rightly set aside by way of the impugned judgment. 8. The Petitioner is a Regulatory Authority, established under Section 3 of the Act of 1996. Its functions are enumerated in Section 4, while its powers CP.2093/2015. 7 are set forth in Section 5 of the Act of 1996, the relevant portions thereof are reproduced hereunder: “5. Powers of the Authority.—(1) The Authority shall exercise all powers as shall enable it to effectively perform its functions specified in section 4. (2) In particular, and without prejudice to the generality of the foregoing power, the Authority shall- (a) …………………………………… (b) monitor and enforce Licenses; (c) ……………………………………… (d) ………………………………………. (e) …….………………………………… (f) ………………………………………. (g) ………………………………………. (h) ………………………………………. (i) ………………………………………. (j) ………………………………………. (k) ………………………………………. (l) ………………………………………. (m) ………………………………………. (n) ………………………………………. (o) issue regulations for exercising its powers and performance of its functions. (p) levy fee and other charges at such rates and in respect of such services as may be fixed by it from time to time not exceeding the limits as CP.2093/2015. 8 specified by a Committee of the Cabinet. (q) ………………………………………… (r) ……………………………………….”. (emphasis supplied) 9. In exercise of the powers conferred under Section 5(2)(o) of the Act of 1996, reproduced hereinabove, the Regulations of 2005 were issued. 10. Section 20 of the Act of 1996, subject to the proviso thereof, enjoins that no person shall establish, maintain or operate any Telecommunication System or provide any Telecommunication Service unless he has obtained a License from the Authority. It is not the case of the Respondent Company that it was exempted from obtaining such License. In fact, the Respondent Company has obtained a License in terms of Sections 20 and 21 of the Act of 1996 and the License includes Clause 1.3 thereof, which is reproduced hereunder: “1.3. This License is subject to the Conditions included in Schedules 2, 3, 4, 5, and 6 to this License, and any further Conditions duly added to this License pursuant to its terms and is subject to the Rules or Regulations issued from time to time by the Federal Government or the Authority.” (emphasis supplied) CP.2093/2015. 9 With regard to Numbers Allocation Charges, reference may be made to Clause 6.4 of the License, which reads as follows:- “6.4 The Licensee shall, following the Modification Date, pay the amount for all the number(s) allocated to it, in accordance with Numbering Plan Regulations issued by the Authority form time to time.” 11. Thus, by virtue of the License and its terms and conditions, more particularly, Clauses 1.3 and 6.4 thereof reproduced hereinabove, the Respondent Company is bound to comply with the provisions of the Regulations of 2005. Such Regulations were in force during the period in question. 12. Regulation 18 of the Regulations of 2005, which is in issue, for ease of reference, is reproduced herein below: “18. Number allocation fee.—(1) For each number(s) allocated to the applicant, the annual charges payable by 31st July each year shall be as follows: S.No. Number Category Annual Fee (Rs.) 1. Six (or higher) digit number for PSTN/WLL & Mobile Phone Numbers 0.50 2. Short Codes, Carrier Pre- selection Codes, NSPC, ISPC, SID, Toll Free Numbers, UAN, UIN, Premium Rate Service 5000.00 CP.2093/2015. 10 numbers and other special numbers etc. Explanation: (a) The annual standard rate of charge for most seven digit numbers including mobile numbers (excluding NDC) shall be as Rs.0.50/-; (b) The maximum amount of charge that shall be imposed on any individual number is Rs.5,000. This maximum rate of charge shall be imposed on short codes as well; and (c) Payment of Annual Numbering Fee for number allocation shall be made in advance at the time of application; Provided that the Annual Numbering Fee shall not be charged for the numbers allocated for less than six (6) months. Provided further that annual charges shall be required for the subsequent years. (2) The Licensee shall be liable to pay a penalty @10% on the amounts outstanding if the dues are not paid by 31st July each year. (3) The Licensee may apply for refund of charges paid for allocation of numbers within 90 days from the date of allocation of the Number(s) subject to the condition that Licensee could not start its services under the circumstances beyond its control. Provided that the Authority may consider the matter and decide on merit which shall be final and binding on the Licensee.” (emphasis supplied) 13. In the above circumstances, as per the terms and conditions of the License, the Respondent Company was required to make payment for the Numbers CP.2093/2015. 11 Allocation at the rate specified in Regulation 18(1) of the Regulations of 2005 by or before the 31st July of each year. It is the case of the Petitioner Authority that in spite of various demands, in this behalf, the Respondent Company failed to deposit the amount in time for the period in question i.e. 2005 to 2011 and such payment was, in fact, belatedly made in the year 2011. 14. Thus, prima facie, the Respondent Company had failed to comply with the terms of its License. Such a situation is dealt with by Section 23 of the Act of 1996, which for ease of reference, is reproduced herein below: “23. Issue of enforcement orders and penalties.—(1) Where a Licensee contravenes any provision of this Act or the rules made thereunder or any term or condition of the licence, the Authority [or any of its officers not below the rank of director] may by a written notice require the Licensee to show cause within thirty days as to why an enforcement order may not be issued. (2) The notice referred to in sub-section (1) shall specify the nature of the contravention and the steps to be taken by the Licensee to remedy the contravention. (3) Where a Licensee fails to— (a) respond to the notice referred to in sub-section (1); or (b) satisfy the Authority about the alleged contravention; or CP.2093/2015. 12 (c) remedy the contravention within the time allowed by the Authority, may, by an order in writing and giving reasons— (i) levy fine which may extend to three hundred and fifty million rupees; or (ii) suspend or terminate the License, impose additional conditions or appoint an Administrator to manage the affairs of the Licensee, but only if the contravention is grave or persistent. (4) Without prejudice to the provisions of sub-section (1) and sub-section (3), the Authority [or any of its officers not below the rank of director] may, by an order in writing, suspend or terminate a licence or appoint an Administrator, if the Licensee— (a) becomes insolvent or a receiver is appointed in respect of a substantial part of the assets; (b) being an individual, become insane or dies. Explanation.-—For the purpose of this section, the Administrator shall be appointed from amongst the persons having professional knowledge and experience of telecommunication.” (emphasis supplied) 15. A perusal of the aforesaid provisions reveals that where a Licensee contravenes any of the provision of the Act of 1996, the Rules framed there-under or any term or condition of its License, such Licensee may be proceeded against under Section 23 of the Act of 1996. CP.2093/2015. 13 Section 23(3)(c)(i), reproduced hereinabove authorizes the Authority to levy fine to a maximum limit of Rs.350 million. Thus, the Petitioner Authority has been clothed with the jurisdiction, inter alia, to levy a fine in case of failure to comply with any term and condition mentioned in the License. The aforesaid Section is further supplemented by Rule 9 of the Pakistan Telecommunication Rules, 2000, hereinafter referred to as “Rules of 2000”, which is reproduced herein below for ease of reference: “9. Monitoring of compliance, enforcement and early termination.- (1) The Authority may monitor compliance by Licensees with their Licenses in accordance with the terms of their Licenses and the Act. (2) If the Authority considers, whether or not as a result of any complaint or made by another person as a result of monitoring by the Authority, that the Licensee has contravened any condition of the License, the Authority may serve a written notice requiring the Licensee to show cause, within thirty days after the date of the notice, as to why an enforcement order should not be issued. (3) If the Licensee appears before the Authority to give an explanation, or submits a written explanation to the Authority, within the period specified in sub-rule (2), to the satisfaction of the Authority, the enforcement order shall not be issued. CP.2093/2015. 14 (4) If the Licensee fails to respond to the notice referred to in sub-rule (2) or satisfy the Authority in respect of the alleged contravention in accordance with sub-rule (3), the Authority may issue an enforcement order requiring the Licensee to remedy the contravention within such period, which shall be less than thirty days from the date of service of the enforcement order, as the Authority may reasonably consider appropriate. (5) If the Licensee fails to comply with the enforcement order served under sub-rule (4), the Authority may, by further enforcement order in writing hereinafter referred to as "final order":- (a) levy a fine which may extend to three hundred and fifty million rupees; or (b) in the case of a grave or persistent contravention of its License, require the Licensee to cease that contravention within such further period of time, not being less than thirty days from the date of service of the final order, as the Authority may reasonably consider appropriate, failing which the Authority may take action under sub-rule (6) in respect of such contravention. (6) Subject to sections 23 and 24 of the Act, the Authority may terminate the License on service of not less than thirty days a notice in writing to the Licensee if the Licensee:- (a) commits a grave, or persistent, contravention of its License and fails to comply with a final order which order has not been set aside by, or is not the subject of any appeal or other proceedings before any court, the Authority or the Federal Government as referred to in section 7 of the CP.2093/2015. 15 Act, served in respect of that contravention within the period specified in that order, or any longer period allowed to the Licensee by the Authority; (b) fails to pay any overdue fee under the License, which fee is not the subject of any dispute in good faith between the Licensee and the Authority and in respect of which any appeal or proceedings have been initiated by the Licensee, within sixty days following service on the Licensee of written notice requiring payment together with a written warning that action will be taken under this sub- rule if the contravention is not remedied within the period specified in the notice; or (c) becomes insolvent or if a receiver is appointed in respect of a substantial part of the assets used by the Licensee for undertaking activities under the License.” (emphasis supplied) 16. In the above circumstances, it is clear and obvious that the Petitioner Authority could impose a fine in case of failure to make payments on the due dates in terms of Regulation 18(1) of the Regulations of 2005 due compliance whereof is a condition of the License (Clauses 1.3 and 6.4). This aspect of the matter has been acknowledged and accepted in the impugned judgment itself, more particularly, in para 13 thereof, which is reproduced hereunder: CP.2093/2015. 16 “13. The Act has, however, vested power in the Authority to, inter alia, levy fines under section 23(3)(c)(i) of the Act if the Licensee has contravened any term or condition of the License. This punitive power has been explicitly provided by the legislature. It was alleged in the show cause notice that the appellant had delayed the payment pursuant to its obligations under the relevant Clause of the License and, therefore, it may have considered the above provisions of section 23 of the Act.” 17. In pith and substance, it appears to be the case of the Respondent Company, which has found favour with the learned High Court by way of the impugned judgment that in terms of Regulation 18(2) of the Regulations of 2005, a penalty has been imposed, which is not envisaged in the Act of 1996, except under Section 31 thereof pertaining to the offences and penalties, which is not attracted to the facts and circumstances of the instant case. In short, it is contended that a fine could be imposed as envisaged by Section 23 of the Act of 1996 but not a penalty, as provided in Regulation 18(2) of the Regulations of 2005. The entire argument, in this behalf, is based upon assumption that the penalty and the fine are two mutually exclusive concepts. 18. In order to resolve the aforesaid controversy, it appears to be imperative that the true meaning and scope of the terms “penalty” and “fine” be explored. In CP.2093/2015. 17 Wharton’s Law Lexicon, Fourteenth Edition by A.S. OPPE, “Penalty” is defined as follows:- “Penalty: 1. A sum agreed to be paid on non- performance of the condition of a bond. See Bond 2. A sum agreed to be paid on breach of an agreement or any stipulation of it. See LIQUIDATED DAMAGES, and NOMINE POENE. The fact that the parties state expressly in their contract that the sum named is ‘liquidated damages’ will not prevent the Court from deciding that it is a penalty. ‘The cases upon the subject of penalty or liquidated damages are very numerous. The result of them seems to be this, that what the Courts look at is the real intention of the parties as it is to be gathered from the language they have used’ (Lea v. Whitaker, (1872) L. R. 8 C. P. p. 73, per Keating, J.). The words are not conclusive ; the essence of penalty is a payment stipulated as in terrorem of the offending party : the essence of liquidated damages is a genuine covenanted pre-estimate of loss, Dunlop Co. v. New Garage Co., 1915, A. C. 79, approved in Widnes Foundry (1925) Ltd. V. Cellulose Acetate Co. Ltd., 1931, 2 K. B. 393, and 1933, A. C. 20. 3. A sum recoverable by action from a person infringing a statute. See PANAL STATUTES. 4. A sum, also called a fine, recoverable in a Court of Summary Jurisdiction from a person infringing a statute.” In Stroud’s Judicial Dictionary Of Words And Phrases, Fifth Edition Volume 4 By Johns S. James, the meaning of “Penalty” and “Fine” describes as under: CP.2093/2015. 18 “Penalty. (1) “‘Penalty’ is an ambiguous word. A penalty may be the subject-matter of an information, or of a complaint” (per Wright J., R. v. Lewis [1896] 1 Q.B. 665). See Chisholm v. Mackenzie, 30 S.L.R. 604, cited PAIN. (2) Where an Act imposes a penalty for anything done (Crepps v. Durden, 2 Cowp. 640, cited NECESSITY) or omitted to be done (Llewellyn v. Glamorgan Vale Railway [1898] 1 Q.B. 473, cited OWNER) on a day, that generally means only one penalty for the entire day; e.g. a man may “exercise his ordinary calling on a Sunday” on any number of times on a particular Sunday but will only be liable to one penalty therefore under Sunday Observance Act 1677 (c. 7) (Crepps v. Durden). So, only one penalty could be recovered for each day that a railway company offended against Railway Clauses Consolidation Act 1845 (c. 20), s.54, by not making a substituted road for an existing road which the company had interrupted (Llewellyn v. Glamorgan Vale Railway).” 3) “The civil liability arising from a breach of a statutory duty is of a wholly different nature from a penalty for such a breach. The former gives no cause of action unless damage to a third party follows from it, and then, in general, gives ground for an action for the amount of such damage at the suit of such third parties. But penalties for breaches of statutory duties apply whether damage has been caused or not” (per Fletcher Moulton L.J. In David Britannia Merthyer Coal Co. [1909] 2 K.B. 149 (Sub Nom. Britannic Merthyr Coal Co. v. David [1910] A. C. 74), Cited Mine See DUTY. See also Simmons v. Newport, etc [1921] 1KB 616; Couch v. Steel, 23 L.J., QB 125). CP.2093/2015. 19 Fine: (1) ”Fine, finis. here (litt. s.194 signifieth a pecuniarie punishment for an offence, or a contempt committed against the King, and regularly to it imprisonment appretaineth. And it is called finis, because it is an end for that offence. And in this case a man is said facere finem de transgressione, etc.., cm rege, to make an end or fine with the King for such a transgression. It is also taken for a sum given by the tenant to the lord for concord and an end to be made. It is also taken for the highest and best assurance of lands, etc.” (Co. lit 126 b). See further Termes de la ley; cowel; jacob; 5 encyc. 341-343; for form of fine of lands. See 2 b1. Com App. XIV. CP. REDEMPTION.” In the Oxford Companion to Law by David M. Walker, the term of “Penalty” and “Fine” is stated as under: “Penalty. A sum of money payable as compensation or as punishment. Many statutes impose penalties for non- implement of a public duty. Penalties may be agreed upon by the parties, as in a bond subject to a condition, where a party binds himself to pay a sum, frequently double the amount secured, if the condition is not complied with. Parties to a contract may agree that, in the event of a beach, the one in breach will pay to the other an agreed sum; if this sum cannot be regarded as a genuine pre-estimate of the damage likely to be sustained by a breach of contract, but is rather a sum stipulated in terrorem of the party in breach, it is deemed to penalty and is irrecoverable so far as in excess of the damage actually sustained. CP.2093/2015. 20 Fine: (I) In criminal law, a sum of money, ordered to be paid to the Crown by an offender by way of punishment. At common law a fine was one of the penalties for a misdemeanour. In 1861 statute permitted a fine for certain felonies but only in 1948 were courts empowered generally, to fine persons convicted of felonies Magistrates’ courts have limits set on the amount of fine imposed for various kinds of offences and statutory offences normally provide for fines within stated limits as the, or a, penalty. Payment of a fine may be enforced by the Crown suing the offender in the civil courts, or, after judicial inquiry into his means, by imprisoning for default in payment.” (emphasis supplied) In the Black’s Law Dictionary, Tenth Edition by Bryan A. Garner, the meaning of “Penalty” and “Fine” is stated as follows: “Penalty: (15c) I. Punishment imposed on a wrongdoer, usu. In the form of imprisonment or fine, esp, a sum of money exacted as punishments for either a wrong to the state or a civil wrong (as distinguished from compensation for the injured party’s loss). Though usu. for crimes penalties are also sometimes imposed for civil wrongs. Civil penalty (17c) A fine assessed for a violation of a statute or regulation. CP.2093/2015. 21 Fine: 5. A pecuniary criminal punishment or civil penalty payable to the public treasury. Fine, vb “this word is ambiguously taken in our law, for sometimes it is taken for a sum of money or mulct imposed or laid upon an offender for some offence done, and then it is also called a ransom. And sometimes it is taken for an income, or a sum of money paid at the entrance of a tenant into his land: [sometimes as a sum paid for the renewal of a lease, and sometimes as a sum paid for the renewal of a lease, and denominated a fine for renewal:] and sometimes it is taken for a final agreement or conveyance upon record, for setting and securing of lands and tenements.” 1 Edward Hilliard Sheppard’s Touchstone of Common Assurance 2B (Richard Preston ed., 7th ed. 1820) (brackets in original)” (emphasis supplied) In the Law Dictionary with Pronunciations by James A. Ballentine 1948 Edition, the meaning of “penalty” is described as under: “Penalty: A word which when used in a contract is sometimes construed as meaning liquidated damages, as where the sum named is reasonable, and the actual damages are uncertain in amount and difficult of proof. If, however, it is called CP.2093/2015. 22 a penalty in the contract, it will be held to be a penalty if there is nothing in the nature of the contract to show a contrary intent. See 15 Am Jur 679; 19 Am Jur 100 An exaction in the nature of punishment for nonperformance of an act, or for the performance of an unlawful act, and involving the idea of punishment, whether enforced by a civil or criminal action or proceeding. See Hall v Norfolk & Western Railroad Co., 44 W. Va 36, 41 L.R.A. 669, 67 A.m. St. Rep 757, 28, S. E. Rep 669.” (emphasis supplied) The question as to the meaning, the word “penalty” came up for interpretation before the Indian Supreme Court in the judgment, reported as N.K. Jain and others v. C.K. Shah and others (AIR 1991 SC 1289), wherein it was observed as under:- “10. In the common parlance the word 'penalty' is understood to mean a legal or official punishment such as a term of imprisonment. In some contexts it is also understood to mean some other form of punishment such as fine or forfeiture for not fulfilling a contract. But in gathering the meaning of this word, the context in which this is used is significant. In the Act, as already noted, Section 14 deals with penalties and enumerates various contraventions or non-compliances which are punishable with imprisonment. Every contravention mentioned in each of the sub-sections is punishable with imprisonment and for offences covered by Sections 14(1A), 14(1B) and 14(2A) minimum imprisonment is also made compulsory. The imposition of fine also CP.2093/2015. 23 is prescribed. The penalties mentioned in this connection would indicate that the Legislature envisaged that a penalty should necessarily mean imprisonment or at least imposition of fine. …………………………………………………… …………………………………………………. However, we shall proceed to consider some of the submissions made on this aspect. The learned counsel referred to certain standard books on words and phrases. In Butterworths' Words and Phrases, legally defined Third Edition page 343 the meaning of the word 'Penalty' is given as that the word ‘penalty’ is large enough to mean, is intended to mean, and does mean, any punishment whether by imprisonment or otherwise. Blackburn, J. in R. v. Smith, [1862] Le Ca 131 at 138, observed as under: "I consider that the word "penalty" falls to be read in a wide popular sense, …. and I select two definitions adequately conveying that sense. The late Mr. Roberton Christie The Encyclopedia, Vol. I 1, p 204) said: “Penalty in the broad sense may be defined as any suffering in person or property by way of forfeiture, deprivation or disability, imposed as a punishment by law or judicial authority in respect of ... an act prohibited by statute.” The Oxford Dictionary echoes the same wide conception by referring to "a loss, disability or disadvantage of some kind ... fixed by law for some offence. The meaning of the word 'penalty' as given in the Collins English Dictionary, is as under: "Penalty: 1. a legal or official punishment, such as a term of imprisonment. 2. some other form of punishment, such as a fine or forfeit for not fulfilling a contract. 3. loss, suffering, or other unfortunate result of CP.2093/2015. 24 one's own action, error, etc. 4. Sport, games etc. a handicap awarded against a player or team for illegal play, such as a free shot at goal by the opposing team, loss of points, etc. " In addition, the learned counsel also relied on some decisions of foreign courts where the meaning of the word 'penalty' was considered. In People ex rel Risso v. Randall, 58 N.Y. 2d 265, 268 Misc.1057, it was held that: "A "penalty" may refer to both criminal and civil liability, being denied as penal retribution, punishment for crime of offense, the suffering in person, rights or property which is annexed by law or judicial decision to commission of a crime or public offense." In City of Fort Wayne v. Bishop, 92 N.E. 2d 544, 547, 228 Ind. 304, it was observed as under: "The term "penalty" embraces all consequences visited by law on heads of those who violate police regulations and extends to all penalties whether exigible by state in interest of community or by private persons in their own interest, even when statute is remedial as well as penal." In City of Cincinnativ. Wright, 67N.E.2d 358, 361, 77 Ohio App.261, it was noted that: "The word "penalty" is not confined to punishment or crime; it has a broader meaning in law of contracts; it is used as contradistinguished from liquidated damages. It is also used to indicate the sum to be forfeited on breach of a bond. And in common parlance it expresses any disadvantage resulting from an act.” (emphasis supplied) CP.2093/2015. 25 This Court in the case, reported as Abdul Hameed Talib v. Addl. District Judge (PLD 2013 SC 775), interpreted the meaning of “fine” as follows: “The definition (of fine) whereof is “a sum of money as a penalty by a Court of law” OR “a punishment to pay a sum of money for the breach of the law”. As it is a penalty and a punishment which has been imposed by the law itself, thus the Tribunal is left with no discretion to waive it off, exonerate or absolve a party coming before it, from such a fine.” At this juncture, it may be appropriate to refer the judgment, reported as R.S. Joshi etc. v. Taluka Sahakari etc. (AIR 1977 SC 2279), wherein the Supreme Court of India had borrowed the meaning of “penalty” and “fine” from the American Jurisdiction in a case, reported as Gosselink v. Campbell, 4 Iowa, 300, wherein it was observed as under: “The terms ‘fine’, ‘forfeiture’ and ‘penalty’ are often used loosely, and even confusedly; but when a discrimination is made, the word ‘penalty’ is found to be generic in its character, including both fine and forfeiture. A ‘fine’ is a pecuniary penalty, and is commonly (perhaps always) to be collected by suit in some form. A ‘forfeiture’ is a penalty by which one loses his rights and interest in his property.” (emphasis supplied) 19. An over view of the aforesaid reveals that the penalty implies a loss, disability or disadvantage of some CP.2093/2015. 26 kind visiting a person or his property on account of his own actions or omissions. It has both criminal and civil dimensions. In the former, it denotes a punishment imposed on a wrongdoer in the form of term of imprisonment or a sum of money exacted from him for violation of the law. While in Civil Law, it may arise from a breach of statutory duty or a contractual obligation with its inherent limitations and peculiar remedies, the details whereof are not necessary for the adjudication of the lis at hand. It is a word of great amplitude. The “fine” on the other hand is a form of “penalty” which implies the payment of money by way of punishment usually imposed for breach of law. It also appears that it is difficult to define “fine” without referring to the concept of “penalty”, thus, it can safely be said that “fine” is a form of “penalty”. All fines are penalties but all penalties are not necessarily fines. In short, a fine is a pecuniary penalty. It is also apparent that both the terms “penalty” and “fine” in a statutory construction may sometime be used loosely but a true import of the term would obviously depend upon the subject matter and the object of the Statutory Instrument CP.2093/2015. 27 wherein such term has been employed that too with reference to the context in which it is used. 20. In the instant case, in terms of Regulation 18(2) of the Regulations of 2005, a Licensee, who fails to make payment of the dues under Regulation 18(1) of the Regulations of 2005 is liable to suffer a penalty equivalent to 10% of the amount due, i.e. a peculiarity disadvantage resulting from a violation of the Regulations of 2005, which a Licensee is required to comply with in view of Clauses 1.3 and 6.4 of his License Agreement but also constitutes a breach of Section 23 of the Act of 1996. Thus, when examined with reference to the subject and object of the Act of 1996 and the Rules of 2000 and the Regulations of 2005 framed there-under and in the context in which the term “penalty” has been used, there is no manner of doubt that for all intents and purposes, it is a fine. It is a common ground between the parties and as is also obvious from the provisions of the Act of 1996 that the said Statute provides specifically for imposition of a fine in terms of Section 23 of the Act of 1996. 21. The reference to Section 5 sub-section 2(p) made in the impugned judgment (apparently at the CP.2093/2015. 28 behest of the learned counsel for the Respondent Authority) appears to be of limited relevance. The said provision of law pertains generally to levy of fee and other charges. The payment in terms of Regulation 18(1) of the Regulations of 2005 is described as a fee/charge therein and the power to impose a fine is specifically mentioned in Section 23 of the Act of 1996, which perhaps is the appropriate provision of law for determining the vires and Regulation 18(2) of the Regulations of 2005. 22. Perhaps the Regulation 18(2) of the Regulations of 2005 may not be happily worded and could have been constructed with a greater care and accuracy. It is an ancient and consistently applied principle of Interpretation of Statutes that where “object and intention of statute is clear it must not be reduced to a nullity by the draftsman’s unskillfulness or ignorance” (The Interpretation of Statutes 7th Edition by Sir Peter Mexwer). 23. Even otherwise, it is a settled law that the Courts should always lean in favour of validity of a Statutory Instrument and should be slow to strike it down and an interpretation, which saves the law, should be adopted rather than holding a law to be invalid, CP.2093/2015. 29 unconstitutional or ultra vires. Reference, in this behalf, may be made to the judgments reported as (1) Mehreen Zaibun Nisa and others v. Land Commissioner, Multan and others (PLD 1975 SC 397), (2) Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423), (3) Messrs Elahi Cotton Mills Ltd and others v. Federation of Pakistan through Secretary, M/o Finance, Islamabad and 6 others (PLD 1997 SC 582), (4) Federation of Pakistan through Secretary, Ministry of Finance and others V. Haji Muhammad Sadiq and others (PLD 2007 SC 133), (5) Syed Aizad Hussain and others v. Motor Registration Authority and others (PLD 2010 SC 983), and (6) Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another (2000 SCMR 1956). 24. A perusal of Section 23 of the Act of 1996 reveals that it deals with contravention of any provision of the Act of 1996 or the Rules framed there-under for any term or condition of a License and in terms of Section 23(3)(c)(i) of the Act of 1996, a fine may be imposed in this behalf to a maximum of Rs.350 million. Regulation 18(2) of the Regulations of 2005 deals only with one of such contravention i.e. Regulation 18(1) of CP.2093/2015. 30 the Regulations of 2005 for which a penalty/fine @ 10% per annum is provided. Obviously, the quantum of fine, if imposed, would be subject to a maximum limit mentioned in Section 23 of the Act of 1996. In the instant case, the fine sought to be imposed is less than the amount mentioned in Section 23(3)(c)(i) of the Act of 1996. In view of the above, it is difficult to hold that Regulation 18(2) of Regulations 2005 is ultra vires the parent statute i.e. the Act of 1996 and the findings to the contrary by way of the impugned judgment are not sustainable. 25. A feeble attempt was made by the learned counsel for the Respondent Company to canvass that no amount was due under Regulation 18(1) of the Regulations of 2005, therefore, proceedings under Section 23 of the Act of 1996 to impose penalty/fine in terms of Regulation 18(2) of the Regulations of 2005 could not be initiated. Suffice it to say, that the payment due under Regulation 18(1) of the Regulations of 2005 has admittedly been made by the Respondent Company. The Show Cause Notice in terms of Section 23 of the Act of 1996 was issued by the Petitioner Authority only with reference to the imposition of the penalty/fine in terms of CP.2093/2015. 31 the Regulation 18(2) of the Regulations of 2005 and the Order dated 03.5.2012 in this behalf was passed by the Petitioner Authority, which was challenged by way of an Appeal filed under Section 7(1) of the Act of 1996 by the Respondent Company. It has not been held in the impugned judgment that the Respondent Company is not liable for the amount due in terms of Regulation 18(1) of the Regulations of 2005. The Respondent Company has not challenged the said judgment before this Court. The liability of the Respondent Company in terms of Regulation 18(1) of the Regulations of 2005, since paid, is not the subject matter of the instant lis. 26. The learned counsel for the Respondent Company, while relying upon Clause 6.6 of the License Agreement has attempted to argue that the amount of penalty under Regulation 18(2) of the Regulations of 2005 should be calculated @ 2% and not @ 10%. The Clause in question is of general import and perhaps relates to all fee payable by a Licensee, while Regulation 18.2 of Regulations of 2005 is specific in nature and applies to amounts due only under Regulation 18.1 of the Regulations of 2005, therefore, must prevail. Secondly, if the argument of the learned counsel for the Respondent CP.2093/2015. 32 Company is accepted, the liability, in fact, would increase, manifold as Clause 6.6 of the License Agreement pertains to the additional payment unpaid fee @ 2% per month, while, in the instant case, the amount under the Regulation 18(2) of the Regulations of 2005 is calculated @ 10% per every year. In the above circumstances, we find ourselves unable to agree with the learned counsel for the Respondent Company or sustain the impugned judgment. 27. Consequently, this Civil Petition is converted into appeal and the same is allowed. The impugned judgment dated 05.5.2015 of the learned Islamabad High Court, Islamabad is hereby set aside. Judge Judge Islamabad, the Judge 26th October, 2015 ‘Not Approved For Reporting’ Safdar/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sh. AzmatSaeed Mr. Justice Faisal Arab Mr. Justice IjazulAhsan CIVIL PETITIONS NO.2108, CMA NO.4937 OF 2018 IN CP NO.2108 OF 2018, CP NO.2299, CMA NO.5180 OF 2018 IN CP NO.2299 OF 2018, CP NO.3749 OF 2018 AND CPs NO.3785 TO 3790 OF 2018. (On appeal from the judgments dated 02.5.2018, 13.9.2018 of the Peshawar High Court, Peshawar passed in WPsNos.1715-P/2015, 1714-P/2015, 2345-P/2018, 2909-P/2018 , 2910-P/2018, 2911- P/2018, 3776-P/2018, 3777-P/2018 and 3778-P/2018, respectively) 1. Dr. Tariq Iqbal (in CP No.2108/18) 2. RiazulHaq (in CP No.2299/18) 3. Attaullah Jan (in CP No.3749/18) 4. Muhammad Iqbal (in CP No.3785/18) 5. M. Amir Khan (in CP No.3786/18) 6. JamshedAkhtar (in CP No.3787/18) 7. Fayyaz Ahmed (in CP No.3788/18) 8. Dr. Aftab Ahmed (in CP No.3789/18) 9. Adnan Malook (in CP No.3790/18) … Petitioner (s) Versus The Govt. of KPK thr. Secy. Administration Peshawar & others … Respondent (s) CPs No..2108/2018 etc.2 For the Petitioner (s) : Mr. NaveedAkhtar, ASC Mr. M.S. Khattak, AOR (in CP No.2108/18) Mr. M. YounisThaheem, ASC (in CP No.2299/18) Malik ManzoorHussain, ASC Mr. M. S. Khattak, AOR (In CPs Nos.3749, 3785-3790/18 ) For the Applicant(s) Mr. M. Shahid Kamal, ASC (in CMA No.10119/18 in CP 3749/18 & CMA 10133/18 in CP 3785/18) For the Respondents : Barrister QasimWadood, Addl. AG KPK Mr. TaimoorKhattak, DS, KPK Mr. Noor Rehman, Estate Officer (in all cases) Date of Hearing : 27.02.2019 JUDGMENT Sh. AzmatSaeed,J.-Through this judgment, it is proposed to dispose of the above titled cases, which involve common questions of law. 2. The lis before us entails the interpretation and legal effect of various provisions of the Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act, 2018, hereinafter referred to as “the Act of 2018” and the Rules framed thereunder i.e. CPs No..2108/2018 etc.3 Residential Accommodation at Peshawar Procedure for Allotment Rules, 2018, hereinafter called as “ the Rules of 2018” 3. Some of the Petitioners before us claimed to have secured the allotment of Government Accommodation under the legal dispensation that existed prior to the promulgation of the Act of 2018and seek protection thereof. Reference, in this behalf, has been made to Section 16 of the Act of 2018, which reads as under:- “16. Saving.--- Subject to the provisions of this Act, any order passed or action taken or arrangement made in relation to the Provincial buildings before the commencement of this Act and not inconsistent with the provisions of this Act, shall be deemed to have been taken under this Act.” 4. A bare reading of the aforesaid provision makes it clear and obvious that previous allotments are only safe if they are not inconsistent with the provisions of the Act of 2018and are subject thereto. Therefore, it appears that such allottees/occupants must establish CPs No..2108/2018 etc.4 their right under the new law in order to protect their allotments/occupations. 5. Some of the Petitioners are the offspring of retired or deceased employees, who were allotted residential accommodation under the previous dispensation. The relevant provision applicable to such allottees/occupants is Section 7(5) of the Rules of 2018, which is reproduced herein below for ease of reference. “7. Management and Allotment of residential accommodation.--- (5) Government may reserve a special quota of residential accommodation for allotment to the son, daughter or spouse, as the case may be, of the public office holder, who has been died or retired from service, as the case may be. Allotment under this sub-section shall be made in a manner as may be prescribed.” 6. A plain reading of the aforesaid provision reveals that the Government is authorized to reserve quota of residential accommodation for allotment to the offspring and spouses of retired or deceased employees, if they are otherwise eligible under the Act of 2018.What needs to be established from the record is whether the CPs No..2108/2018 etc.5 Petitioners before us, who claim allotment under the aforesaid provisions are, in fact,in occupation of residential accommodation of the quota reserved in terms of Section 7(5) of the Act of 2018. This factual position has not been established on record one way or the other and remains to be ascertained,thus, an exercise must necessarily be carried out by the Secretary, Administration, Government of KPK, which hasbeen impleaded as one of the Respondents. 7. The other aspect of the matter in the instant cases involves the interpretation of Section 7(3) of the Act of 2018. The said provision is reproduced hereunder for ready reference:- “7. Management and Allotment of residential accommodation.--- (3) Where Government provides resources to any Government Department, office or agency, as the case may be, for construction of its own pool of residential accommodation or where such Government Department, office or Government agency already has such a pool, its employees shall cease to be eligible for residential accommodation under this Act:” CPs No..2108/2018 etc.6 8. Before embarking upon the exercise for attempting to interpret the aforesaid provision, it may be appropriate to restate the cardinaland well settled principle of interpretation, which requires that a purposive rather than a literal approach of interpretation be adopted as has been held by this Court inter alia, in the judgment reported as Federation of Pakistan through Ministry of Finance and others v. M/s. Noori Trading Corporation (Private) Limited and 14 others (1992 SCMR 710), Hudabiya Engineering (Pvt) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others (PLD 1998 Lahore 90) andSaif-ur-Rehman v. Additional District Judge, Toba Tek Singh and two others (2018 SCMR 1885). 9. Furthermore, an overview of the Act of 2018would suggest that it confers the benefit of residential accommodation to those, who hold public offices and are eligible in terms thereof. The tone and tenor of the Statute is clearly beneficial in nature,therefore, its provisions must CPs No..2108/2018 etc.7 necessarily be interpreted liberally so as to advancethe benefit rather than curtail it.Such is the law, as laid down by this Court in the judgments reported as Lahore Development Authority through D.G., Lahore and another v. Abdul Shafique and others (PLD 2000 SC 207),Pakistan Engineering Co. Limited, Lahore through Managing Director v. Fazal Beg and 2 others (1992 SCMR 2166) andSaif-ur-Rehman (Supra) 10. It appears that certain Government departments, offices and agencies in the KPK have their own pool of residential accommodation or such accommodation is provided to them by the Government of KPK. A bare reading of the afore- quoted provision would reveal that a person otherwise eligible under the Act of 2018, who is employed in such Government department, office or agency with its own pool of accommodation, is not eligible for residential accommodation in the general pool. Such an interpretation would be reasonable, fair and beneficial, as a person cannot CPs No..2108/2018 etc.8 be entitled to residential accommodation, of both the office/department and that of the general pool thereby gaining an unfair advantage over other public office holders. Every eligible person must stand in either one queue or the other to wait for his turn for allotment of residential accommodation. The problem has arisen in the instant cases where there is indeed a pool of accommodation of a department, office or agency but such residential accommodation is designated for a particular officer only and all employees of the said department, office or agency are not entitled to be considered for such allotment. Such residential accommodation in case of Health Institutions is for those required in emergency, while the other accommodation is reserved for the Chowkidarsetc. only. 11. It is in the above backdrop, the contention of the learned Additional Advocate General, KPK that a person employed by any department, office or agency that has its own pool of residential accommodation is not entitled or CPs No..2108/2018 etc.9 eligible for allotment of accommodation in the general pool even though he is also not entitled to be considered for allotment of residential accommodation in the department, office or agency where he is currently employed cannot be occupied. Such an interpretation would disentitle such persons from residential accommodation both in the department, office or agency as well as in the general pool. Such interpretation could not be considered to be either logical, purposive or beneficial.When viewed in its true perspective,it is clear and obvious that Section 7(3) of the Act of 2018 merely provides that a public office holder can either be entitledto or eligible for allotment in the general pool or in the pool of his own department, office or agency if it has such a pool but a public office holder not eligible for allotment under the pool of his department, office or agency,is obviously, eligible for allotment in the general pool, as it cannot be the intention of the legislature to totally exclude such public office CPs No..2108/2018 etc.10 holder from any and all official residential accommodations. 12. The learned Additional Advocate General, KPK has alluded to the possibility that a person, who is currently not entitled to a residential accommodation of his department may by transfer or promotion attain such right. This possibility, of course,cannot be ruled out but it has been catered for under Rule18 of the Rules of 2018, which provides conditions of retention of such accommodation and reiterates the obvious bar to occupation of more than one accommodation. 13. In view of the above, it is clear and obvious that true and fatefulinterpretation of the Act of 2018, more particularly, Sections 16, 7(5) and 7(3) respectively and Rule 18 of the Rules of 2018 is that:- (a) All allotments of residential accommodation made prior to the promulgation of the Act of 2018 must pass the test of being consistent and subject to the provisions of Act of 2018, asthe saving provision i.e. Section 16 of the Rules of 2018 is of such limited amplitude. CPs No..2108/2018 etc.11 (b) The offspring and spouses of the retired or deceased public office holders, if otherwise, eligible may be allotted or retain official residential accommodation in such capacity, if the residential accommodation in question is part of the quota reserved, in this behalf, in terms of Section 7(5) of the Act of 2018. (c) That a person i.e. the public office holder will only loose entitlement of residential accommodation in the general pool if he is employed in a department, office or agency with its own pool of residential accommodation and such public office holder is entitled to be considered for such allotment. In case of such residential accommodation in the pool of the department, office, agency is designated and the person does not hold such designation, he is entitled to be allotted and can retain allotment of residential accommodation in the general pool.In case of subsequent transfer or promotion to a designation, entitling him to the official residential accommodation in the pool of the said department, office or agency, his rights would be governed obviously by Rule 18 of the Rules of 2018. 14. The entire body of necessary facts ineach and every case is not available before us, hence, CPs No..2108/2018 etc.12 we are handicapped from deciding and adjudicating upon each of these petitions. 15. In this view of the matter, the consolidated impugned judgments dated 02.5.2018& 13.9.2018 of the learned Peshawar High Court and the orders of the department in questionare set aside. The entire matter of allotment or retention of such allotments, as the case may be, is remanded to the Secretary, Administration, Government of KPK, who shall decide individual cases after hearing all the concerned parties in accordance with the law and in terms of the observations made herein above. The Petitioners may retain their residential accommodations in the meanwhile subject to the decision by the Secretary concerned in terms of this judgment. 16. These Civil Petitions as well as Civil Misc. Applications are disposed of, in the above terms. Judge CPs No..2108/2018 etc.13 Judge Islamabad, the Judge 27th February, 2019 Approved for Reporting Safdar/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE QAZI FAEZ ISA Civil Petition No.2117 of 2016 (On appeal from the judgment dated 28.6.2016 passed by the High Court of Sindh at Karachi in M.A. No.35/16) Pakistan Electronic Media Regulatory Authority ….Petitioner VERSUS Independent Media Corporation, Limited ….Respondents For the petitioner: Mr. Kashif Hanif, ASC Mr. Mehr Khan Malik, AOR (absent) Mr. Absar Alam, Chairman, PEMRA For the respondent: Mr. Jam Asif Mehmood Lar, ASC Mr. Qutab-ud-Din Saim Hashmi, ASC Syed Rifaqat Hussain Shah, AOR For Respondents 1-3: Mr. Omair Syed Head (Litigation) Date of hearing: 4.7.2016 ORDER Dost Muhammad Khan, J.— At the very outset, the learned counsel for the parties agreed that let the main CPLA be decided in the following terms:- (i) That so far as the suspension of the show/program for three days by PEMRA is concerned, due to injunction order of the learned High Court of Sindh a very narrow margin of time is left and because the matter is listed for hearing today before the said Court, hence to that extent the petition has almost become infructuous. (ii) The rest of the four charges are still alive and to be inquired into/investigated by the COC and after receiving the recommendations the PEMRA (competent authority) would look into it while complying with all the rules and provisions of law CP 2117/16 2 on the subject and will also consider the effect of the apology to be tendered publically by the Channel and through print media. 2. During course of hearing, it came to our notice that many other channels, like the one under consideration, have not installed the censoring devices, particularly time delaying mechanism to cut off and expunge the offending part of the live show/program and bring it in conformity with the PEMRA rules and provisions of the Ordinance. 3. It was stated at the bar that a team of experts would soon inspect all the channels to ensure that such device i.e. time delaying mechanism is in place so that undesirable and offending programs or spoken words are not aired and the same are blocked. 4. As the rest of the four allegations/charges fall within the domain of PEMRA, therefore, it may proceed with the same according to the law and rules on the subject and to conclude the matter as was agreed at the bar within 30 days, which shall commence after Eid holidays. Needless to remark that the respondent may submit reply within 10 days, after Eid vacations. 5. In view of these arrangements, the appeal filed by the respondent before the High Court of Sindh has become infructuous and may be disposed of accordingly. Petition is converted into appeal and disposed of. Judge Judge Islamabad, the 4th July, 2016 Nisar/- Not Approved For Reporting.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Civil Petition No.2119 of 2018 (Against judgment dated 02.04.2018 passed by the Islamabad High Court Islamabad in ICA No.179-W/2012) Dr. Shamim Tariq …Petitioner(s) Versus International Islamic University, Islamabad through its President & others …Respondent(s) For the Petitioner(s): Mr. Muhammad Shoaib Shaheen, ASC Mr. Ahmad Nawaz Chaudhry, AOR For Respondent No.1: Mr. Rehan-ud-Din Khan, ASC For Respondent No.4: Mr. Babar Awan, Sr.ASC Syed Rafaqat Hussain Shah, AOR Date of hearing: 12.2.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.-Dr. Shamim Tariq, petitioner herein, has a turbulent academic career in the Faculty of the International Islamic University, an institution chartered by Ordinance No.XXX of 1985, hereinafter referred to as the University; credited with a Doctorate in Urdu Literature, she was first appointed, under Tenure Track System, hereinafter referred to as the T.T.S, as an Assistant Professor (Urdu) in BPS-19, way back on 13.6.2009; her services were terminated on 29.9.2010. A Constitutional Petition i.e. W.P. No.3138 of 2010, disputing termination was withdrawn by her on 20.1.2010, statedly in lieu of assurance pledged by the University to take her on board for consideration in future appointment and it is in this backdrop that Civil Petition No.2119 of 2018 2 she was appointed as Lecturer (Urdu) in BPS-18, IIU on 8.2.2011, on ad hoc basis; after availing extension for further six months, she was still on job when the University advertised on 19.6.2011 various academic posts that included Assistant Professor (Urdu) in BPS-19; in the meanwhile she was terminated once again on 5.10.2011. The petitioner applied once again, however, failed to join five short listed candidates, namely, Dr. Robina Shahin, Rashida Qazi, Dr. Fareeha Nighat, Farhat Jabeen Virk and Sadia Tahir; successive droppage on account of previous adverse evaluation under the T.T.S. was cited as the reason behind her exclusion. From amongst the short listed candidates, Dr. Sadia Tahir, respondent secured the appointment. The petitioner recoursed to law once again through W.P. No.18 of 2012; she prayed for a declaration against the respondent as well as a direction for her appointment as Assistant Professor (Urdu). A learned Judge-in-Chamber of Islamabad High Court vide judgment dated 6.4.2012 set aside respondent’s appointment while directing the University to draw up the process afresh so as to consider the petitioner. Dissatisfied, the University as well as the respondent preferred an Intra Court Appeal i.e. I.C.A. No.179-W/2012; a learned Division Bench vide order dated 14.5.2012 dismissed the Intra Court Appeal in limine on the ground of its being non- maintainable in absence of statutory rules; this Court, however, vide judgment dated 15.2.2013 set aside the decision and remanded the case in the following terms:- “We have noted that Respondent No.1 has taken as many as 13 grounds in the memorandum of appeal and the same had not been adverted to. Even otherwise, it appears from the impugned judgment that other grounds were taken up but “main emphasis of the learned counsel for the appellants was on the maintainability of writ petition due to non-statutory rules.” This being the position, we convert this petition into appeal and allow the same. The impugned judgment is set aside and the case is remanded to the High Court for deciding afresh Intra Court Appeal No.179-W of 2012 on merits, which shall be deemed to be pending.” The Intra Court Appeal came up for hearing before a Larger Bench of the Islamabad High Court; it was clubbed with cases wherein the Court examined the status of the Rules adopted by the University; quest by the University met with no better fate; the Civil Petition No.2119 of 2018 3 battle continued to rage once again before this Court in Civil Petition No.2430 of 2015, resulting into another remand order on 7.12.2015. It is in pursuance thereto that the judgment dated 6.4.2012 by the learned Judge-in-Chamber was finally set aside, in consequence whereof, appointment of the respondent was finally affirmed, vide judgment dated 02.04.2018, vires whereof are being assailed on grounds more than one. 2. Learned counsel for the petitioner contends that notwithstanding petitioner’s eligibility/qualification, she was excluded from the array of short listed candidates for reasons far from being fair or bona fide; according to him, the entire exercise was carried out for extraneous purposes to accommodate the respondent who was not even qualified for the post on the relevant date, as she had yet to defend her dissertation/thesis, a mandatory requirement for the position advertised; the bottom line is that entire process of appointment smacked favoritism and as such was liable to be struck off; it is further argued that a direction for petitioner’s appointment as Assistant Professor (Urdu) in BPS- 19 would be just and fair to remedy the wrong, being endured by her since 2011. Learned counsel for respondent No.4 contends that much water has flown under the bridge since her appointment and as she has been aptly performing her duties to the satisfaction of University Authorities as well as the students, it would be most inexpedient to oust her from the job as, by now, she holds a Doctorate in Urdu Literature; according to him, she met the requirements of the job as advertised in the newspaper dead line whereof was 30th June, 2011 without there being any reference to a Ph.D. as one of the preconditions; it is next argued that the respondent after sacrificing her previous jobs secured the appointment on her own merit, being best in the lot and that the petitioner cannot step into her shoes through a Quo Warranto. Mr. Rehan-ud-Din Khan, ASC while faithfully defending the University, nonetheless, fairly conceded that respondent did not hold a Doctorate when applied for the job. 3. Heard. Record perused. 4. Advertisement soliciting applications reads “Applications are invited from qualified persons for the following Civil Petition No.2119 of 2018 4 posts”; job description/qualification is further explained as follows:- Assistant Professor BPS-19/TTS “Economics (Female); Comparative Religion (Male & Female); Psychology (Male); Mechanical Engineering (Male); English Linguistic & Literature (Male & Female); Mass Communications (Male); Mathematics (Male & Female); Politics & IR (Female); Software Engineering (Male & Female); Management Sciences (Male & Female); Islamic Art & Architecture (Male & Female) Hadith (Female); Tafseer (Female); Seerah & Islamic History (Female); Urdu (Male & Female); Physics (Male & Female); Computer Science (Male & Female); Education (Male); Sociology (Female); History and Pakistan Studies (Male & Female); Business Communication for Management Sciences (Male & Female); Bio Informatics (Male & Female) Environmental Sciences (Male & Female); Arabic Translation (Male & Female); Law (Male & Female); Electronic Engineering (Male & Female).” The advertisement refers the candidates to look for required qualifications for each position provided in the University Website (www.iiu.edu.pk) and for the post of Assistant Professor in all disciplines other than Arabic & Law, the following requirements are mentioned:- “Ph.D in the relevant field from an HEC recognized University/Institution. OR Master’s degree (foreign) or M.S/M.Phil equivalent degrees awarded after 18 years of education as determined by the HEC in the relevant field from and HEC recognized University/Institution. Four years teaching research experience in a recognized university or a post-graduation Institution or Professional experience in the relevant field in a National or International Organization.” The candidates were required to meet the above criteria on the date of submission of their applications i.e. 30th June, 2011; the respondent did not possess the requisite qualification on the said date and as such was not qualified to be considered for the job, a position at a seat of learning, maintained by the exchequer. Respondent’s acclaimed academic brilliance as well as extensive teaching experience notwithstanding, nonetheless, digression from the prescribed criteria cannot be countenanced without setting an ominous precedent, casting its fall out on other disciplines as well. Adherence to the statutory rules and procedures for selection of public jobs is the only surest method to objectively select the best out of the best from a competing lot; it is rooted into the fundamentals of equal opportunity, equal treatment and equal protections; any deviation therefrom would rock the bottom of the Civil Petition No.2119 of 2018 5 Republic, resting upon equiponderance. State authority in every sphere of life is a sacred trust to be exercised fairly and justly by the functionaries to accomplish the purposes assigned to them by law; it is their bounden duty to do right to the all manner of people, without any distinction. It is most important that right people are selected for official positions to serve the Republic as it is imperative to survive and sustain into today’s competitive World; deviation would be treacherously seditious. Constitutionally recognized principle of equal opportunity is strengthened by divine affirmation, upheld and followed by every modern constitution of the day. ﷲ ﻢﺗ ﻮﮐ ﻢﮑﺣ ﺎﺘﯾد ﮯﮨ ہﮐ ﺖﻧﺎﻣا ںﻮﻟاو ﯽﮐ ﮟﯿﺗﺎﻧﺎﻣا نا ﮯﮐ ﮯﻟاﻮﺣ ﺮﮐ ﺎﯾد وﺮﮐ روا ﺐﺟ ںﻮﮔﻮﻟ ﮟﯿﻣ ہﻠﺼﯿﻓ ﮯﻧﺮﮐ ﻮﮕﻟ ﻮﺗ فﺎﺼﻧا ﮯﺳ ہﻠﺼﯿﻓ ﺎﯿﮐ وﺮﮐﺎﺴﻨﻟا ةرﻮﺳ) ء( ﺎَﮭِﻠْھَأ ﻰَﻟِإ ِتﺎَﻧﺎَﻣَﻷا ْاوﱡدﺆُﺗ نَأ ْﻢُﻛُﺮُﻣْﺄَﯾ َّ� ﱠنِإ ِلْﺪَﻌْﻟﺎِﺑ ْاﻮُﻤُﻜْﺤَﺗ نَأ ِسﺎﱠﻨﻟا َﻦْﯿَﺑ ﻢُﺘْﻤَﻜَﺣ اَذِإَو As the respondent did not possess requisite qualification, the Selection Board had no occasion to consider her in preference to those who possessed the qualifications as advertised by the University itself; argument that the impugned appointment is based upon considerations other than noble does not appear to be beside the mark. Similarly, contention that the respondent acquired the requisite qualification soon after her selection and during the subsequent years, irretrievably gone by, mentored excellence and, thus, her expulsion from the service so late in the day would be an option, most inexpedient in circumstances, fails to impress us; none other than herself has to debit the blame, Selection Board being accomplice next to her. Stream of justice must run pure and clean. Consequently, respondent’s appointment as Assistant Professor (Urdu) in BPS-19 is declared to have been made without lawful authority and accordingly set aside. The Selection Board shall convene at the earliest to appoint a suitable candidate from amongst the already short listed candidates, excluding both the petitioner as well as the respondent; exercise be completed within a period of three months with a dispatch of compliance report. Petitioner’s prayer for appointment as Assistant Professor (Urdu) in BPS-19 against the same post in her quest through quo warranto cannot be granted inasmuch as the Court can certainly Civil Petition No.2119 of 2018 6 issue a direction for an incumbent’s departure from the office for lack of credentials, nonetheless, conclusion of such an exercise would not, by itself, pave way to fill the vacancy merely on the ground that the competitor had no justification to hold the same and that she was better placed in circumstances. Civil Petition is disposed of in the above terms. These are the reasons of our short order of even date, reproduced as under:- “For the reasons to be recorded, this petition is disposed of by declaring the appointment of respondent No.4 to the post of Assistant Professor (Urdu) in the respondent No.1/University as illegal and direct the university to re-evaluate and re-interview the other candidates who were found eligible to be considered to the post in accordance with law and make the appointment accordingly. Such exercise be concluded within a period of three months from today and compliance report of the order be submitted to this Court soon thereafter.” Judge Judge Judge Islamabad, the 12th February, 2020 Approved for reporting Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE NASIR-UL-MULK, HCJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IJAZ AHMED CHAUDHRY CIVIL PETITION NO. 2124 OF 2013 & C.M.A. NOs. 1079 & 4821 OF 2014 (On appeal against the order dated 10.10.2013 passed by Islamabad High Court, Islamabad in ICA No. 1005/2013) Ghulam Rasool … Petitioner VERSUS Government of Pakistan through Secretary Establishment Division, Islamabad and others … Respondents For the Petitioner: Mr. Abdul Rahim Bhatti, ASC For the Respondent (3): Mr. Khurram Mumtaz Hashmi, ASC For Federation: Mr. Salman Aslam Butt, Attorney General Mr. Muhammad Waqar Rana, Addl. Attorney General Date of Hearing: 30.10.2014 JUDGMENT CIVIL PETITION NO. 2124 OF 2013 IJAZ AHMED CHAUDHRY, J.- Petitioner and others, who are serving employees of Inter Services Intelligence (ISI) and belong to surveillance cadre, being aggrieved of their promotion policy to next scale had filed a Constitution Petition before the learned Islamabad High Court. At the time of hearing of the petition, the respondent No. 3 raised a preliminary objection with regard to the maintainability of the writ petition, upon which the learned Single Judge in Chamber after hearing the parties dismissed the Writ Petition by observing that the petitioners are civil servants and the High Court has no jurisdiction to entertain the said petition and that the proper forum for the matters in relation to terms and Civil Petition No. 2124/2013 etc 2 conditions of the civil servants is Federal Service Tribunal. The Intra Court Appeal filed by the petitioners also met the same fate. Hence this petition. 2. We have heard learned counsel for the parties and have perused the impugned judgments. 3. Admittedly the petitioner is enjoying the status of civil servant in terms of Section 2(b) of the Civil Servants Act, 1973. His appointment letter has also been issued under the said Act and the proper forum for redressal of his grievance was Federal Service Tribunal. The Tribunal is functional and the petitioner, if so advised, can approach the said forum for redressal of his grievance. In these circumstances, the impugned judgments are unexceptionable. The petition is dismissed and leave refused. ISSUE OF FILLING UP CERTAIN CONSTITUTIONAL POSTS (C.M.A. NOs. 1079 & 4821 OF 2014) 4. During the hearing of Civil Petition No. 2124/2013 this Court had taken note of the fact that specific posts under the Constitution and under various statutes are pending and still have not been filled up. A concise statement in this behalf bearing CMA No. 1079/2014 has been filed by the Federal Government wherein steps have been outlined for the appointment of various constitutional posts and the problems the Government is facing in such appointments. Learned Attorney General for Pakistan has submitted that as there was no specific prayer made in the said concise statement, another CMA bearing No. 4821/2014 has been filed. He submitted that the Federal Government is facing difficulties in appointments to such offices in view of the direction given by this Court in paras 26 & 27 of the judgment reported as Khawaja Muhammad Asif Vs. Federation of Pakistan (2013 SCMR 1205); that Civil Petition No. 2124/2013 etc 3 in the said judgment a procedure has been prescribed for appointments to certain offices in statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory bodies etc to be processed through a Commission; that some of these offices are created by statutes providing their own procedure for appointment and, therefore, some anomalies would arise in case the appointments are made in accordance with the directions given in Khawaja Asif supra judgment and the business of the Federal Government is suffering. He further added that since assumption of office by the Prime Minister and the Federal Cabinet, the Federal Government has sincerely tried to fully comply with the above said judgment regarding the proposed Commission and initially certain Public Sector Organizations were included in the schedule of posts under the purview of the Commission but despite the sincere endeavours there are administrative issues that are creating hurdles. In this regard a list has also been filed whereby it has been brought to the notice of this Court that so far only for the following Public Sector Organizations, appointments can be made:- i) Pakistan Telecommunication Authority a) Member Technical b) Member Finance ii) Pakistan Television Corporation iii) Pakistan Steel Mills Limited According to the list, there are 22 statutory bodies and 33 Public Sector Companies established under Companies Ordinance, 1984, whose heads are yet to be appointed by the Commission. 5. Learned Attorney General further added that while making the directions, the provisions of Article 90 of the Civil Petition No. 2124/2013 etc 4 Constitution where the power of appointment has been vested in the Federal Government has not been taken into consideration by this Court; that the contents of para 26 & 27 of the Khawaja Asif supra judgment were in the form of certain recommendations and suggestions which could not have assumed the status of law. In this regard he relied on Shahid Orakzai and another Vs. Pakistan (PLD 2011 SC 365). He further added that various Acts / Ordinances lay down the criteria for high-level appointments and empower the Federal Government to make such appointments, which the Federal Government is bound to follow; that such provisions also inherently envisage the ability of the Federal Government to adopt any suitable manner, method and policy of vetting, assessing and selecting suitable candidates for such appointments according to the peculiar needs and complexities of specific appointments; that when the law provides for a thing to be done in a particular way, it should have been done in that way and in no other way; that none of the Acts / Ordinances envisage any forum or body like the Commission; that an essential function of the Government has been given to the Commission which is against the law; that the Members of the Commission are not accountable to anybody and that since the Commission has no legal status, its Members are not subject to judicial review by the Court, therefore, there is no procedure available to check the possible abuse of power by the Commission. On the other hand, he added that the Federal Government or the Prime Minister, as the case may be, are accountable to the Parliament under the Constitution and also to the People of Pakistan and their actions are subject to judicial review. He lastly prayed that the directions contained in Khawaja Asif supra judgment at paras 26 to 30 may be revisited or clarified. Civil Petition No. 2124/2013 etc 5 6. We have heard learned Attorney General for Pakistan at some length. 7. During the last care-taker Government, a large number of appointments were made without following any merit or procedure that were against the Constitutional mandate of a care- taker Government. Khawaja Muhammad Asif, a Parliamentarian, had filed a petition before this Court under Article 184(3) of the Constitution against the said appointments and this Court had inter alia made following directions:- “26. Be that as it may, in order to ensure the enforcement of the fundamental right enshrined in Article 9 of the Constitution and considering it to be a question of public importance, a Commission headed by and comprising two other competent and independent members having impeccable integrity, may be the Federal Ombudsman or Chairman NAB or a Member of Civil Society having exceptional ability and integrity, is required to be constituted by the Federal Government through open merit based process having fixed tenure of four years to ensure appointments in statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory authorities to ensure appointment of all the government controlled corporations, autonomous and semi- autonomous bodies, etc. The Commission should be mandated to ensure that all public appointments are made solely on merits. The Commission should discharge mainly the following functions:-- (i) Regulate public appointments processes within his remit; (ii) implement a Code of Practice that sets out the principles and core processes for fair and transparent merit-based selections; (iii) chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where necessary; (iv) appoint Public Appointments Assessors to chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where appropriate; (v) report publicly on a public/statutory body's compliance with the Code of Practice, including examples of poor and good performance, and best practice; (vi) investigate complaints about unfair appointment process; Civil Petition No. 2124/2013 etc 6 (vii) Monitor compliance with the Code of Practice; (viii) Ensure regular audit of appointments processes within his remit; (ix) Issue an annual report giving detailed information about appointments processes, complaints handled, and highlights of the main issues which have arisen during the previous year. The annual report for the previous calendar year should be laid before the Parliament by 31st March; (x) Take any other measures deemed necessary for ensuring that processes for public sector appointments that fall in his remit are conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are fully guarded against. 27. The Code of Practice should provide foundations for transparent merit-based public appointments. All public appointments must be governed by the overriding principle of selection based on merit, out of individuals who through abilities, experience and qualities have a proven record that they best match the need of the public body in question. No public appointment must take place without first being recommended by the Commission. The appointments procedures should be subjected to the principle of proportionality, that is, what is appropriate for the nature of the post and the size and weight of its responsibilities. Those, selected must be committed to the principles and values of public service and perform their duties with highest level of integrity. The information provided about the potential appointees must be made public. The Commission may from time to time conduct an inquiry into the policies and procedures followed by an appointing authority in relation to any appointment. He may also issue a statement or publish a report commenting publicly on any breach or anticipated breach of the Code. The appointment of the successful candidate must be publicized. . . . . . 30(e) The appointments in autonomous/semi-autonomous bodies, corporations, regulatory authorities, etc., made before the appointment of Caretaker Government shall also be subjected to review by the elected Government by adopting the prescribed procedure to ensure that right persons are appointed on the right job, in view of the observations made in above paras (Paras.Nos.25 and 26)” 8. We have noted that while making such directions, the provisions of Article 90 of the Constitution were overlooked by this Court. Article 90 reads as under:- Civil Petition No. 2124/2013 etc 7 “90. (1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the Chief Executive of the Federation. (2) In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federal Ministers.” 9. The appointment of a Commission and the power to make recommendations for such appointments is not in accordance with Article 90 of the Constitution where the power of appointment has been vested in the Federal Government. It appears that in the light of the observations made in paras 26 & 27 of the Khawaja Asif supra judgment the legal authority has been vested in a Commission and its recommendations are being made binding upon the Prime Minister. It is by now a well settled law that the responsibility of deciding suitability of an appointment, posting or transfer fell primarily on the executive branch of the State. It is also a settled law that the Courts should ordinarily refrain from interfering in policy making domain of the Executive. In Executive District Officer (Revenue), District Khushab Vs. Ijaz Hussain (2012 PLC(CS) 917) this Court has held that framing of recruitment policy and rules thereunder fell in the executive domain; that the Constitution of Pakistan is based on the principle of trichotomy of powers where legislature is vested with the functions of law making, the executive with its enforcement and judiciary of interpreting the law and that Courts could neither assume the role of policy maker nor that of a law maker. The contents of the said paras were in the form of certain recommendations, which could not have assumed the status of law. In Shahid Orakzai and another Vs. Pakistan (PLD 2011 SC 365) the importance of consulting the Hon’ble Chief Civil Petition No. 2124/2013 etc 8 Justice of Pakistan has been stated in the matter of appointment of Chairman of the National Accountability Bureau and it was expected that such recommendation had to be given effect for all future appointments. Subsequently in Ch. Nisar Ali Khan Vs. Federation of Pakistan etc (PLD 2013 SC 568) this Court had clarified that in the absence of the Hon’ble Chief Justice of Pakistan from the appointment process of Chairman NAB, the observations in Shahid Orakzai supra case were not to be treated as binding and that “a suggestion or recommendation made by the Court in a judgment though entitled to due respect, deference and consideration, does not travel beyond a suggestion or a recommendation and it does not by itself assume the status of law. By its nature and form a suggestion or a recommendation is simply what it is, nothing more and nothing less.” In Syed Mahmood Akhtar Naqvi and others Vs. Federation of Pakistan etc (PLD 2013 SC 195), this Court has held that “whenever there are statutory provisions or rules or regulations which govern the matter of appointments, the same must be followed”. Keeping in view the above discussion, it can be said that the matter of appointment of heads of statutory bodies, autonomous / semi-autonomous bodies, corporations, regulatory authorities etcetera are governed under specific statutory provisions which cannot be overlooked or substituted by some other mechanism. We have noted that various Acts / Ordinances lay down a specific criteria / qualifications for high-level appointments and empower the Federal Government to make such appointments. Some of them are (i) Federal Public Service Commission of Pakistan Ordinance, 1977, (ii) Competition Act, 2010, (iii) Pakistan Electronic Media Regulatory Authority Ordinance, 2002, (iv) Oil and Gas Regulatory Authority Ordinance, 2002, (v) NEPRA Act, 1997, (vi) Securities & Civil Petition No. 2124/2013 etc 9 Exchange Commission Act, 1997, (vii) Pakistan Telecommunication (Re-organization) Act, 1996, and (viii) Companies Ordinance, 1984. The above referred Acts / Ordinances provide a complete procedure of appointments, which the Federal Government is bound to comply with as mandated under Article 5 of the Constitution. The Federal Government has been expressly empowered by the Legislature to make high-level appointments in accordance with the criteria specified in the concerned Acts / Ordinances. In case of companies incorporated in the public sector under the Companies Ordinance, 1984, the appointment and removal of Directors is comprehensively dealt with under the said Ordinance and the memorandums, rules / regulations framed there under. However, it is also made clear that the Court’s deference to the Executive Authority lasts for only as long as the Executive makes a manifest and demonstrable effort to comply with and remain within the legal limits which circumscribe its power. Even where appointments are to be made in exercise of discretionary powers, such powers are to be employed in a reasonable manner. Even otherwise, the policy adopted by the Federal Government in making appointments is open to judicial review on the touchstone of the Constitution and the laws made there under i.e. in case of any illegality in the ordinary process of appointment, this Court as well as the High Courts have sufficient powers under Articles 184 & 199 of the Constitution to exercise judicial review. There are similar Commissions in other countries including the United Kingdom, Canada and India. However, all those commissions were made pursuant to specific laws / statutes enacted for that purpose. In Australia, the Australian Public Service Commission was established pursuant to the Public Service Act, 1999. Similarly in Canada, the Federal Accountability Act, 2006, Civil Petition No. 2124/2013 etc 10 was enacted by the Parliament for inter alia putting in place measures respecting administrative transparency, oversight and accountability. However, no public appointments commission has yet been created. No statutory Commission has been crated in Pakistan for examining suitability of persons for appointment to high public offices. The Government may consider the establishment of such a Commission through legislation in order to ensure transparency which would also enable the executive authority to make an informed decision while making appointments. 10. In view of the afore-referred circumstances, we clarify that it is the exclusive preserve of the Federal Government to appoint heads of statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory bodies etc as also to make appointments on merits under the Acts / Ordinances wherein certain criteria has been laid down for such purpose. CMA Nos. 1079 & 4821 of 2014 are allowed in terms noted above. 11. Now that there are no impediments in the process of appointments to the offices in the statutory bodies and to public sector companies referred to in paragraph 4 above, they shall be filled up without loss of time by the end of December, 2014. A preliminary report of the progress made towards the appointment shall be submitted by the learned Attorney General for Pakistan for our perusal in chambers by the 10th of December, 2014. CHIEF JUSTICE JUDGE JUDGE Islamabad, the Announced on 14.11.2014. Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Muhammad Amin Ahmed Civil Petition No.2129 of 2020 (Against the order dated 02.06.2020 passed by the Islamabad High Court Islamabad in W.P. No.1052/2020) Khawaja Anwer Majid …Petitioner(s) Versus National Accountability Bureau through Chairman NAB & another ….Respondent(s) For the Petitioner(s): Mr. Muneer A. Malik, Sr.ASC Mr. M. Kassim Mirjat, AOR Mr. Salahuddin, ASC For the NAB: Mr. Hasan Akbar, Addl. Prosecutor General NAB Mr. Imran-ul-Haq, Deputy Prosecutor General NAB Mr. M. Qasim, Assistant Director, NAB Date of hearing: 02.09.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Khawaja Anver Majid, petitioner herein, a business tycoon, is prominent amongst the array of accused, hauled up by the National Accountability Bureau in a massive money laundering scam, executed through 29 fake accounts, detected vide a Suspicious Transaction Report, resulting into registration of a First Information Report with F.I.A. State Bank Circle Karachi on 6.7.2018. Given the magnitude of scam and colossal amounts siphoned off thereunder, this Court took cognizance thereof and directed a probe through a Joint Investigation Team, pursuant whereto, the heist was taken up by the NAB with a long list of accused that included a former President and his sister as well to face indictment before an Accountability Court at Islamabad. 2. The petitioner, a septuagenarian bracing the periphery from an hospital bed, sought bail primarily on the ground of his cardiac conditions that required replacement of aortic valve for which he was already admitted Civil Petition No.2129 of 2020 2 in the National Institute of Cardio Vascular Diseases at Karachi; he relied upon report dated 3.8.2019, relevant portion whereof is reproduced, here under: “….Mr. Anwar Majeed was admitted in NICVD on 10th October, 2018 when he was brought in emergency by Jail Authorities with Chest Pain, episode of Giddiness and shortness of breath. He has underlying of Severe Aortic Valve Stenosis and Coronary Artery Diseases and was in unstable condition that needed stabilization. He was initially admitted in CCU for stabilization and further management. During his course of treatment, on 26th June 2019 at night he was taken away and his condition deteriorated, he was brought back in an hour to NICVD and kept in CCU (please find attached incident report). Presently Mr. Anwar Majeed is in private ward. He has been advised surgical Aortic Valve Replacement along with CABG by the treating Cardiologist and Cardiac Surgeon. He has shown us the medical advice of his UK based Cardiologist who suggested him the same procedure. This very high risk procedure can only be done at highly specialize centers such as NICVD or Aga Khan University Hospital at Karachi. This kind of facility is not available anywhere else in Pakistan. Given his age (77 years) and due to the high risk involved he can only undergo surgery once his health allows.” However, the request was declined by a learned Division Bench of Islamabad High Court vide order dated 10.10.2019, unsuccessfully assailed in this Court as his Civil Petition No.4425 of 2019 was dismissed as withdrawn on 11.3.2020 with the following order: “Learned counsel for the petitioner does not press this petition in order to move an application on any available fresh ground. Allowed. Dismissed as withdrawn.” Petitioner again approached the Islamabad High Court for his release on bail, once again declined on 20.5.2020 and in the above backdrop, the petitioner has again approached this Court for his release on bail with permission to go abroad to undertake cardiac surgery, as according to the learned counsel, not only his cardiac condition alarmingly deteriorated, domestically there was no adequate arrangement for the required surgical procedures without incurring substantial risk to patient’s life; this was argued as fresh ground in circumstances in support whereof reports dated 14th July, 2020 and 25th July, 2020, of National Institute of Cardio Civil Petition No.2129 of 2020 3 Vascular Diseases have been placed before the Court. Learned counsel has emphatically stressed upon the following portions of the above reports: “…..Mr. Anwer Majid admitted since October 2018, his condition has progressively deteriorated during his hospital course nowadays. He frequently feels SOB and chest pain at rest and requires Oxygen support and shifting to Coronary Care Unit for stabilization. For his loss of appetite and nausea he also requires frequent IV nutritional supplementation. He has also developed diabetes and his renal functions are deteriorating. He was seen by Infectious Diseases specialist and found high risk for Covid-19 infection. Gastroenterologist, nephrologists are on board for his medical problems, his diabetes to become aggressive and that alone is a high-risk factor in the TAVI procedure. It must be noted that his heath is deteriorating with age particularly in last few months and risk of anesthesia is increasing with every passing day. However, even to undergo TAVI, he should regain strength and get back in a stable medical condition in order to have fighting chance. Mr. Anwer Majid was further reviewed by Prof. Nadeem Hassan Rizvi, Professor of Interventional Cardiology and Proctor of TAVI at NICVD and was found prohibitive for TAVI procedure in Pakistan because of his multiple co-morbidities, risk of renal failure and low volume of procedures in all Pakistani Centre that are performing TAVI. He also recommend for procedure to be performed at high volume Tertiary Care Center with abundant experience in TAVI on patient of this age with all available tertiary care facilities in UK by patient’s primary physician. In order to undergo this procedure, he should regain strength and get back in stable medical condition in a conducive and stress free environment. Keeping all the above facts and factors in view and based purely on medical and ethical grounds we recommend that Mr. Anwer Majid is at prohibitive risk for TAVI procedure in Pakistan. It is preferable that this procedure should take place in advanced high volume center abroad with abundant experience in performing TAVI on the patient of his age, that would also allow simultaneous treatment of his multiple co-morbidities especially in case of complication during or post procedure.” 3. It is submitted that given the complex chronic complications, diagnosed by experts of impeccable repute, prescribed surgery involving intricate cardiac procedures with high degree risk, it would be a most perilous option for the petitioner at the age of 78 to undertake the process in custody and as he is willing to furnish any security to the satisfaction of the Court, it would be expedient to allow him go abroad in order to save Civil Petition No.2129 of 2020 4 his life, a fundamental right of paramount importance, guaranteed under the Constitution. It is next argued that identically placed co-accused Asif Ali Zardari is already on bail for medical complications far less serious than those confronting the petitioner and as such he is additionally entitled for release on bail under the requirement of principle of consistency. Contrarily, Mr. Imran-ul-Haq, learned Deputy Prosecutor General NAB has faithfully contested the plea with vehemence; according to him, since the petitioner was denied bail by a learned Division Bench of Islamabad High Court, petition needs to be placed before a three members Bench. On merits, he argued that the petitioner being the principal accused has played an instrumental role in a massive financial scam of unprecedented scale, each limb whereof is established through irrefutable documentary evidence; he adds that after dismissal of his previous bail application vide order dated 11.3.2020, present application is not maintainable for want of a fresh ground, as according to him, the findings recorded by the doctors reflect almost the same condition previously noted by them, found insufficient by the Court for petitioner’s release on bail; he has complained that the petitioner is contumaciously obstructing the trial as well as investigative process as he effectively frustrated multiple attempts by the NAB officers who reached out him many a time in the hospital with a view to conclude the investigation. The learned Law Officer has pledged all possible cooperation and facilities to the petitioner to undertake surgery in the NICVD or any other facility of his choice in the country. 4. Heard. Record perused. 5. Objection by the learned Law Officer regarding the constitution of the Bench to hear the bail plea is beside the mark. No doubt, under Order XI of the Supreme Court Rules, 1980, every cause, appeal or matter shall be heard and disposed of by a Bench consisting of not less than three Judges…… and as the bail was declined by a learned Division Bench, the learned Law Officer consider it a matter to be dealt with a Bench comprising three Judges of this Court, however, he lost sight of proviso to the said Order that reads as under: “Appeals from judgments/orders of the Service Tribunals or Administrative Courts, and appeals involving grant of bail/cancellation of bail, may be heard and disposed of by a Civil Petition No.2129 of 2020 5 Bench of two Judges, but the Chief Justice may, in a fit case, refer any cause or appeal as aforesaid to a Larger Bench.” Therefore, petition being a bail matter, disposal whereof, is held by us as consistent with the Order ibid. Petitioner’s unenviable health conditions with a risk apparently looming large, given his advance age i.e. 78, notwithstanding, nonetheless, we do not consider it expedient to entertain his request to undertake journey abroad for medical purposes. He is facing indictment in a criminal case, prima facie, supported by evidence, collected by the investigating agency. Therefore, as an accused all that he can claim is “due process of law” through a fair trial so as to possibly vindicate his position; it is a right equally extendible to all the accused without distinction of stature, status or station. As a sick and infirm person, as he appears to be, the petitioner is entitled to the concessions that the law provides to all and sundry; these do not include offshore treatments. Equality before law and equal protection thereof are not one sided affairs; these equally empower the State through its prosecuting agencies to effectively prosecute the alleged offenders and for that physical custody/presence of an accused to bring the prosecution to its logical end is a sine qua non. On equiponderance stand the heavens and the earth, and no less importantly people’s faith in the administration of justice by the Courts. With scores of accused awaiting conclusions of their long drawn trials in over-crowded prisons, letting the few privileged to jump the queue in order to swap rigors of incarceration with comforts that few could afford would be a travesty. We would not approve out of turn fixation of cases with interregnums smaller than usual and on the week days barred to ordinary litigants and while upholding the equality we are guided by the Prophetic command “The Kazee must not smile in the face of one of the parties, because that will give him a confidence above the other; neither must he give too much encouragement to either, as he would thereby destroy the proper awe and respect due to his office” (The Hedaya, by Charles Hamilton, Page-338). Overseas journey is a wage much higher than a smile simpliciter. For the above reasons, petitioner’s request for treatment abroad is declined. However, we have noticed that ever since dismissal of petitioner’s previous bail application, his condition has alarmingly deteriorated and it is unanimously held by a good number of cardiac physicians of repute that Civil Petition No.2129 of 2020 6 he immediately requires surgery for aortic valve transplant, a hugely risk intensive procedure that needs to be undertaken under most conducive environment, therefore, it would be appropriate to permit petitioner to undertake the procedure free from custodial stresses; he has been behind the bars for a period by now exceeding two years; his continuous incarceration coupled with fragile health conditions and proposed surgery squarely makes his case one of hardship and on that ground alone we allow the request for his release on bail for the said purpose; he shall furnish a bank guarantee either personally or through a surety in the sum of Rs.100 million from a scheduled bank with the Registrar of this Court besides surrendering his travelling documents, unless already held by the authorities; his name shall be placed on Exit Control List and he shall not be allowed to depart from the jurisdiction of the Accountability Court. These are not the only conditions of his bail; he shall join investigation as and when required by the NAB and also ensure his representation before the Accountability Court, either personally or through video link, whichever is found convenient under the circumstances. In the event of physical incapacity, his request for dispensation and representation through a counsel shall be considered most thoughtfully. In the event of non-compliance with the directions issued by this Court, the NAB may approach this Court for the recall of concession. Petition is converted into appeal and allowed. Judge Judge Islamabad, the 2nd September, 2020 Not approved for reporting Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Mazhar Alam Khan Miankhel Civil Petition No.2144/2016 (Against the judgment dated 11.05.2016 passed by the Peshawar High Court, Abbottabad Bench in C.R. No.21-A/14) Sardar Arshid Hussain and others Petitioners Versus Mst. Zenat un Nisa and another Respondents For the Petitioners: Mr. Hassan Raza Pasha, ASC Mr. Ahmed Nawaz Ch. AOR (Absent) For the Respondents: N.R. Date of Hearing: 26.01.2017 ORDER Mazhar Alam Khan Miankhel, J.- This petition is directed against the judgment dated 11.05.2016 of the Peshawar High Court, Abbottabad Bench whereby Civil Revision No.21-A, filed by the petitioners, was dismissed. 2. We have heard the learned counsel for the petitioners and perused the record with his assistance. The perusal of the record would reveal that the controversy between the parties revolves around a house which was initially transferred by Muhammad Irfan to Respondent No.1-Mst. Zenat-un-Nisa being his wife in lieu of dower vide an un-registered sale/dower deed dated 15.02.1987 alongwith possession whereas the said Muhammad Irfan subsequently transferred the said house in the name of his two sons i.e. Petitioners No.1 & 2 through a registered gift deed bearing No.1036 dated 2.10.1998. On getting knowledge of the same, the Respondent No.1 filed a suit for declaration questioning the genuineness of the above said registered gift deed. The Respondent No.1 through her evidence established her stance C.P.2144/16 2 of transfer of suit house in her favour by her husband vide an un-registered sale/transfer deed in lieu of dower and the physical possession of the suit house was also given to her on the strength of that deed. Besides, the report of the Forensic Science Laboratory (FSL) i.e. Exh.CW-1/1 has also confirmed the signatures of Muhammad Irfan on the said deed. The defendants/petitioners have failed to shatter the evidence so produced by the plaintiff/Respondent No.1 in support of her stance and thereby the factum of transfer of suit house vide above said un-registered deed has been established. But in the peculiar circumstances of the case in hand, the question would be as to whether the above said un-registered sale/dower deed can be given any preference over the registered gift deed in favour of defendants/petitioners. The answer to this question would be a simple yes. The law on the point is now very much settled. A registered deed reflecting transfer of certain rights qua a property though will have sanctity attached to it regarding its genuineness and a stronger evidence would be required to cast aspersions on its correctness but cannot be given preference over an un- registered deed vide which physical possession of the property has also been given. Sub-section (1) of Section 50 of the Registration Act, 1908 also provides that a registered document regarding transfer of certain rights in an immovable property will have effect against every un-registered document relating to the same property and conferring the same rights in the property as shown in the registered document but the law has also provided certain exceptions to the above said provisions of law. If a person being in possession of an un-registered deed qua transfer of certain rights in property alongwith possession of the same he can legally protect his rights in the property and even a registered deed subsequent in time will not affect his/her rights. The first proviso to Section 50 of the Registration Act, 1908 provides so that such rights in the property can be protected under Section C.P.2144/16 3 53-A of the Transfer of Property Act, 1882. Reliance in this regard can well be placed on the cases of Fazla Vs. Mehr Dina and 2 others (1999 SCMR 837) and Mushtaq Ahmad and others Vs. Muhammad Saeed and others (2004 SCMR 530). So irrespective of the fact that the petitioners have a registered gift deed in their favour but the same is subsequent in time and they having no possession of the property cannot get any advantage of the same. Besides, the petitioners have claimed the gift in their favour vide the impugned registered deed but the basic ingredients of gift i.e. offer, acceptance and delivery of possession have also not been proved by them. The most important aspect of the case is that after the earlier transfer to Respondent No.1, legally Muhammad Irfan had nothing left to further transfer the same property to anyone else. So, the subsequent transfer vide the above said registered gift deed is illegal and void having no adverse effects on the rights of the plaintiff-Respondent No.1 and that has rightly been held so by the fora below. The petitioners have failed to rebut the evidence led by Respondent No.1 and they only tried to prove the factum of the alleged registered gift deed in their favour but the transfer in their favour, in view of the above discussion, is not a valid transfer. Even the petitioners did not question that very un-registered transfer deed in favour of Respondent No.1. Placing reliance on the case of Abdul Majeed and 6 others Vs. Muhammad Subhan and 2 others (2000 SCJ 135) would be of great significance here, wherein, it has been observed that unless and until a substantial defect in reading oral or documentary evidence is pointed out the finding relating to factual appreciation of controversy need not be gone into by the Supreme Court. 3. In view of what has been discussed above, the concurrent findings of the fora below do not suffer from any illegality or irregularity calling for interference by this Court. Resultantly, this petition is dismissed and leave to appeal is refused. C.P.2144/16 4 The above are the reasons for our short order of even date which reads as under:- “For the reasons to be followed leave is declined and petition is dismissed.” Judge Judge ISLAMABAD 26th January, 2017 NOT APPROVED FOR REPORTING (Nasir Khan)

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CIVIL PETITION NO.216-Q of 2017 (On appeal against the judgment dated 08.11.2017 passed by the High Court of Balochistan, Quetta in Constitution Petition No.721 of 2015.) Jahanzaib Malik … Petitioner VERSUS Balochistan Public Procurement Regulatory Authority, through its Chairman Board of Directors and others … Respondents For the petitioner: Mr. Tariq Mehmood, Sr. ASC. For respondents No.1&2: Mr. Ayaz Swati, Addl. A.G. For respondent No.3: N.R. (Not represented) Date of hearing: 04.01.2018 ORDER IJAZ UL AHSAN, J. – The petitioner seeks leave to appeal against a judgment of the Division Bench of the High Court of Balochistan dated 08.11.2017. Through the impugned judgment, Constitutional Petition No.721 of 2015 filed by Respondent No.3 was partly allowed and the order dated 08.04.2015 and notification dated 29.08.2017 issued by Respondent Nos. 1 and 2 were set aside. 2. The brief facts of the case are that Respondent No.3 Balochistan Public Procurement Regulatory Authority (“BPPRA”) invited applications for appointment against a post of Director C.P.No.216-Q/2017. 2 (Monitoring and Evaluation). The qualification for the said post as advertised, was Masters Degree in Social Sciences and 5 years experience in the relevant field. The last date for submission of applications was 28.08.2014. The petitioner and Respondent No.3 applied for the said post. After a test conducted by NTS and interviews taken by a Committee of senior officers, respondent No.3 was appointed against the said post through a contract dated 08.04.2015, for a period of 2 years. On expiry of the said 2 years period, during pendency of Constitutional Petition before the High Court, the petitioner was granted extension for another period of 2 years from 08.04.2017 to 08.04.2019. 3. Respondent No.3 who was also one of the applicants was not appointed. He challenged the appointment of the petitioner before the High Court on the ground that he neither possessed the requisite qualification nor experience in the relevant field on the last date for submission of applications i.e. 28.08.2014. Therefore he was not lawfully appointed. The learned High Court came to the conclusion that the petitioner did not possess the requisite educational qualification when he was appointed against the said post. Further, his appointment could not validly be extended in view of the fact that the extension notification was issued in continuation of the earlier notification. on the basis of which the petitioner had been appointed. Despite the fact that Respondent No.3 did not challenge the extension notification either by way of amendment or through a fresh constitution petition, the High C.P.No.216-Q/2017. 3 Court proceeded to take notice of such development and set aside the extension order also. Hence this petition. 4. The learned counsel for the petitioner submits that the qualification for appointment to the post of Director (Monitoring and Evaluation) was a Masters Degree in Social Sciences or equivalent and 5 years experience in the relevant field. He submits that the petitioner possesses a degree of Masters of Science in Electronic Business Management from the University of Warwick, UK. It is recognized by the Higher Education Commission of Pakistan as equivalent to corresponding Masters of Science Degree involving 16 years of schooling in the relevant field from Pakistan. He further submits that the petitioner also had a Masters degree in Business Administration (MBA) from the Institute of Business Administration (IBA), Karachi. He had completed the course work in 2014, however the actual degree was issued on 7th of March, 2015 which was before the employment contract dated 08.04.2015 was issued in his favour. That being the case, the High Court erred in fact in coming to the conclusion that the petitioner was not qualified on the date of his appointment. He further submits that the contract of the petitioner was validly extended with effect from 08.04.2017 by the Competent Authority as per applicable rules on the basis of recommendations made by a Selection Committee, considering very good performance evaluation reports earned by the petitioner from 2015 to 2017. 5. Notice had been issued to Respondent No.3. Despite service he has not entered appearance. He is therefore, proceeded C.P.No.216-Q/2017. 4 against ex-parte. The learned Additional Advocate General, Balochistan has supported the arguments advanced by the learned counsel for petitioner. 6. We have heard the learned counsel for the petitioner and carefully examined the record. The petitioner had applied for the post of Director (Monitoring and Evaluation) in BPPRA. The last date for submission of applications was 28.08.2014. At the time when the petitioner filed his application, he mentioned his qualification as holding a Masters Degree in Electronic Business Management from the University of Warwick, UK and an MBA degree from Institute of Business Administration, Karachi. The year of completion of degree was mentioned as 2014. 7. There is no denial of the fact that the petitioner was at the top of the list on the basis of his performance in the test and interview. Further, he was selected on the basis of his MBA degree. The documents examined by us also indicate that the petitioner has completed his degree in January, 2014 with an cumulative Grade Point Average (“GPA”) of 3.19. However, the degree was formally issued on 7th of March, 2015 for reasons beyond the control of the petitioner. The degree itself shows that the petitioner had successfully completed the requisite course work and examination in the academic year 2014. The transcript issued by the Institute of Business Administration, Karachi also verifies the fact that the petitioner had completed his degree in January, 2014. That being the case, Respondents No.1 and 2 were justified in C.P.No.216-Q/2017. 5 considering the petitioner as duly qualified on the basis of his MBA degree from IBA. 8. The fact that the degree was formally issued in year 2015 is not, in the facts and circumstances of the present case of much significance. The degree itself shows that the petitioner had successfully completed the requisite course work and examination in the academic year 2014. This is further substantiated by the Transcript of Credit issued by the Institute of Business Administration, Karachi which shows that the petitioner had completed his degree in January, 2014 with an cumulative GPA of 3.19. 9. In addition, we notice that the 2 years contract of the petitioner expired on 08.04.2015. In consequence of which the Constitutional Petition as originally filed was rendered infructuous. The petitioner was granted a further extension of 2 years vide office order dated 29th August, 2017 with effect from 08.04.2017. The said office order was not challenged by Respondent No.3 either through amendment in the Constitutional Petition or by filing a fresh petition. By taking Suo Moto Notice of such extension, the High Court appears to have exceeded its jurisdiction for reasons which are not legally sustainable. In addition, through the office order dated 29th August, 2017, six other officials of Balochistan Public Procurement Regulatory Authority had been granted two years extension of service. Such employees were neither before the High Court nor were their appointments or reappointment orders under challenge. Yet without hearing the said persons or C.P.No.216-Q/2017. 6 considering their cases, the High Court proceeded to set aside their extensions also, by setting aside office order dated 29.08.2017. This is an additional ground for our inability to uphold the judgment of the High Court. 10. It may be pointed out that the only reason assigned by the High Court for setting aside the extension order dated 29th August, 2017 is that it is in continuation of the original appointment order which had been set aside. We have already held that the original appointment order was validly issued. Therefore the reasons recorded by the High Court for setting aside the extension order automatically pale into insignificance. 11. For reasons recorded above, we convert this petition into an appeal and allow the same. The impugned judgment of the High Court is accordingly set aside. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 4th January, 2018 Naveed Ahmad/* APPROVED FOR REPORTING

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISEICTION) PRESENT: Mr. Justice Gulzar Ahmed Mr. Justice Dost Muhammad Khan Mr. Justice Tariq Parvez Civil Petition No2167 of 2014 (On appeal from the judgment dated 22.09.2014 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in CR No.141-P/2014) Khan Toti and others ….Petitioners Versus Govt. of NWFP thr. Secretary Finance and others For the petitioners: Syed Safdar Hussain, ASC For Govt. of KPK: Mr. Waqar Ahmed Khan, Addl. A.G. KPK For the Federation: Syed Nayyab Hassan Gardezi, ASC Standing Counsel for Attorney General Date of hearing: 16.03.2016 JUDGEMENT Dost Muhammad Khan, J.— Petitioner Khan Toti along with 17 others and proforma respondents No.8 and 9 have questioned the legality, propriety and legitimacy of the judgment of learned Single Judge of the Peshawar High Court, Mingora Bench, Swat in C.R. No.1141-P/07. Leave to appeal is sought against the impugned judgment dated 22.09.2014 by the petitioners on various grounds. We have heard Syed Safdar Hussain, learned ASC for the petitioners, Mr. Waqar Ahmed Khan, learned Addl.A.G. KPK and Syed Nayyab Hussain Gardezi, learned ASC, Standing Counsel for the CP 2167/14 2 Federation and have carefully gone through the record as well as the law, rules and regulations, applicable to the subject matter. 2. The epitome of the controversy relates to the issuance of notification by respondents No.1 to 4, officials of Government of NWFP (KPK) dated 22.7.1987 to extend financial and other benefits of service to all the employees/civil servants in BPS-5, 6, 7 and 9. The employees of BPS-5 were given @33% Selection Grade in BPS-7 and employees of BPS-6 were allowed Selection Grade in BPS-7 and 33% posts were placed in Selection Grade BPS-9. Similarly, the notification thus issued, has extended further benefit of two advance increments to those employees who had passed FA examination while to those who had got Bachelor Degree were allowed three advance increments. 3. The Executive/Administrative authorities, not well conversant with the judicial branch of the District Judiciary, could not clarify the nomenclatures of the Readers, Moharars, Examiners and other alike, who in fact are Senior or Junior Clerks in the above grades. However, through a letter dated 27.07.1989, issued by the Finance Department, the petitioners and proforma respondents were extended the benefits, therefore, that controversy, although was put at rest but still agitated by the respondent government. 4. The learned ASC for the official respondents raised preliminary objection that the Civil Court was having no jurisdiction to entertain the subject matter as the petitioners and proforma respondents, being civil servants and the matter relates to the terms & conditions of their service thus, the impugned judgment of the Peshawar High Court is not open to any exception. On the other hand, learned ASC for the petitioners vehemently contended that it is a classic case of discrimination, which is squarely CP 2167/14 3 prohibited by Article 25 of the Constitution and that, once such amount was paid to the petitioners and proforma respondents in light of the clarification of the Finance Department’s letter dated 27.07.1989 then, the official respondents were stopped to make a retrace or to turn volta-face and that, after separation of Judiciary from the Executive, right from the lower tier, the petitioners and proforma respondents were servants of the Province but keeping in view the scheme of the Constitution and the law on the subject after complete separation of Judiciary from the Executive limb of the State, the petitioners could not be termed in strict legal sense as civil servants in the affairs of the Provinces to make them amenable to the jurisdiction of the Provincial Services Tribunal. The learned Judge in the High Court committed legal and jurisdictional error, accepting such objection of the official respondents who were petitioners before the High Court because of the above legal and constitutional position, the learned ASC further added. 5. In view of the Objectives Resolution, which is now integral part of the Constitution by way of Article 2A thereof and the command contained in Sub-Article (3) of Article 175 of the Constitution clearly providing without any exception that the Judiciary shall be separated progressively from the Executive within a period of three years from the commencing day. However the same was extended to five years by the Constitution (Fifth Amendment) Act, 1976 and then to 14 years through ‘Presidential Order’. 6. Although no successive government made any effort to comply with the commanding language of the above Article, completely separating or securing the independence of Judiciary at all levels and tiers, however, it was in Sharaf Faridi’s case when the CP 2167/14 4 Sindh High Court gave an authoritative judgment which was then challenged by the Government of Sindh and others through Chief Secretary before the Supreme Court of Pakistan. A larger Bench of five Hon’ble Judges, including the then Hon’ble Chief Justice while dealing with the issue of separation of judiciary at all tiers and to secure its independence in all spheres including financial independence, after the Federal Government and all the four Provincial Governments conceded to the constitutional requirements, gave authoritative judgment in the case of Govt. of Sindh vs. Sharaf Faridi (PLD 1994 SC 105) by laying down exhaustive and comprehensive guidelines to that effect. The Court also elaborated on Law Reforms Ordinance 1972 (XII of 1972) provided for the securing of complete separation of judiciary from the Executive. 7. Necessary directions were issued to all the Governments to amend the Civil Servants Acts of the Provinces and the Federal one and the Appointment, Promotion/Transfer Rules and also E&D Rules framed thereunder to establish the authority of the Chief Justices of the High Courts and that of the Supreme Court of Pakistan with regard to the subordinate Judiciary of the High Courts and its para legal staff and also of the High Courts Ministerial Establishment to draw a clear demarcation line between the Executive and the Judiciary. The latter one was to fall within the exclusive domain of the Supreme Court and the High Courts. All those directions were given effect in due course. 8. The Governors of the Provinces, particularly of NWFP (KPK) delegated all their powers to the Chief Justices of the High Courts to deal with the Judicial officers subordinate to the High Courts and the paralegal staff with further powers to further delegate their powers to any other authority within the High Courts or the District Judiciary. CP 2167/14 5 9. For the redressal of grievance in the matter of Terms & Conditions of Service, Subordinate Judiciary Service Tribunal Act was enacted with the object that the Provincial Service Tribunal was ceased to exercise any jurisdiction with regard to the terms & conditions of the Judges of the Courts subordinate to the respective High Courts. 10. On the other hand, the Finance Division of the Federal Government and the Finance Departments of all the Provincial Governments delegated extensive powers under the Financial Rules to the Chief Justice of Pakistan and Chief Justices of the High Courts as a competent authority to deal with all financial matters including the powers to create or abolish any post, upgrade or down grade or increase the number of posts in the establishment of the Supreme Court, High Courts and District Judiciary with the only exception that the expenditure is to be met within the budget, separately allocated to the Supreme Court and the Four High Courts. Keeping in view the above constitutional and legal position the Judiciary stood separated for all purposes and intents from the Executive. 11. If the paralegal staff of the District Judiciary is construed to be a civil servant, amenable to the jurisdiction of the Provincial Service Tribunal, which is ordinarily presided over by a District & Sessions Judge, nominated by the Chief Justices of the respective High Court on the request of the provincial governments while rest of all the members belong to the executive limb of the State in the Provinces then, a serious inexplicable situation may be emerged because certain posts of the paralegal staff of the District Judiciary has now been up- graded to BPS-17 and above to take action for breach of discipline or to impose punishment, the Chief Justice of the High Court alone is the competent authority while in other cases the District & Sessions CP 2167/14 6 Judges for the employees from grade 1 to 15 are the competent authorities and appeal against their decisions shall lie to the Chief Justice thus, the Chief Justice or to say the High Court and the District & Sessions Judges would be arrayed as respondents in appeal before the Provincial Service Tribunal, rendering them answerable to such Tribunals and to defend themselves before the different benches of the Service Tribunal headed by members from the Executive Authority, except the Chairman who too is subordinate to the Chief Justice and his nominee. 12. Even otherwise under Article 175(3) of the Constitution the Chapter is prefaced with the nomenclature “the Judicator”. The scheme of the Constitution and the law on the subject clearly envisages that the Judiciary is the one and a single ladder where different rugs are working therein right from the District Judiciary, its ministerial staff or menial staff, the High Court establishment staff and the Supreme Court Establishment Staff. Therefore, throwing back the ministerial or menial staff of the District Judiciary at the mercy of the Provincial Service Tribunal, holding them civil servants would amount to reverse all the efforts made so far in securing independence and separation of the judiciary from the executive and the landmark judgment in Sharaf Faridi case would become of no judicial efficacy rather would be rendered ineffective. 13. Even in the British era, rules were framed by the Judicial Commissioner U/s 27(3) of the North-West Frontier Province (KPK) Courts Regulation, 1 of 1931 for the subordinate services attached to the civil courts (District Judiciary) other than the Judicial commissioner’s Court. In clause (ix), although the NWFP Civil Services (Punishment and appeal) Rules, 1943 were made CP 2167/14 7 applicable where against inflicting a penalty on any member of paralegal staff by the subordinate Judge under clause (1) of Rules (IX- A) appeal shall lie to the senior subordinate Judge and in the case of order passed by the senior subordinate Judge under Rule A, the appeal shall lie to the District Judge. However, any penalty imposed by the District Judge in original jurisdiction under clauses (b) & (c) of rule 8, the appeal was to lie to the Judicial Commissioner and further appeal under rule 10 of the Punishment and Appeal Rules had to lie before the Governor of the Province. 14. We have extensively studied the Civil Servants Appointment, Promotion and Transfer Rules of 1975 and the NWFP Civil Servants Appointment, Promotion and Transfer Rules 1981 but could not find any provision specifically or by necessary implication repealing the rules of 1937, framed by the Judicial Commissioner with the approval of the Governor of the NWFP. 15. Leaving aside that aspect of the matter for a moment, a similar proposition came up before this Court in the case of I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others (1991 SCMR 1041). The larger Bench of five Hon’ble Judges made exhaustive scrutiny of Article 212 of the Constitution and Ss. 4 & 3 of the Service Tribunals Act, (LXX) of 1973. In this case the controversy was with respect to granting of pensionary benefits to a class of retired employees of Executive Branch, who had retired within a particular period while the same was denied to another class of employees similarly placed, who had retired in another period. The then learned Attorney General raised preliminary objection that the Constitution Petitions before the High Court and then before this Court under Article CP 2167/14 8 212 thereof were clearly barred and the same were liable to be dismissed on that ground alone. The Hon’ble Larger Bench after construing the provisions of Article 212 of the Constitution and S. 4 of the Federal Service Tribunal Act, 1973 held that right of appeal is only accrued to a civil servant, if he is aggrieved by any final order, whether original or appellate, made by the departmental authority in respect of any of the terms & conditions of the services where the Service Tribunal has the jurisdiction to the exclusion of other courts under sub-section (1) thereof. It was further held that it must follow that the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, thus, the jurisdiction of the Court remained intact. It was further pointed out that the Tribunal was having jurisdiction against the final order whether original or appellate passed by the departmental authority relating to the terms & conditions of the service. This Court further held that the question, therefore, arises whether the notification containing the provisions for payment of enhanced pension to one class of retired employees which had been denied to the petitioners, can be treated as a final order, original or appellate, passed by the departmental authority in respect of any term & condition of service. Reliance was placed by the then Attorney General on the cases of M.A. Yamin Qureshi vs. Islamic Republic of Pakistan and others (PLD 1980 SC 22)(ii) Iqan Ahmed Khurram vs. Govt. of Pakistan and others (PLD 1980 SC 153), (iii) The Controller, Central Excise and Land Customs and others vs. Aslam Ali Shah (PLD 1985 SC 82) (iv) The Superintendent of Police, Headquarters Lahore and two others vs. Muhammad Latif (PLD 1988 SC 387) and (v) Abdul Wahab Kan vs. Govt. of the Punjab and 3 others (PLD 1989 SC 508). CP 2167/14 9 The view taken therein was also not dissented from, rather followed however it was further held that the petitioners’ case is solely founded on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of breach of any provision of Civil Servants Act or the rules framed thereunder. It was further held that the question involved is of public importance as it effects all the present and future pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution however, it was clarified that a civil servant cannot by-pass the jurisdiction of the Service Tribunal by adding a ground of violation of the fundamental rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms & conditions of the service even it involves the question of violation of the fundamental rights. The contention of the learned Attorney General, who then was, repelled and it was further held in para-12 of the judgment at page 1064, which reads as follows: "The plain language of Article 184(3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so`" moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated. In this context the question arises whether apart from the non-incorporation of sub-Article 1(a) and 1(c) of Article 199, the rigid notion of an "aggrieved person" is implicit in Article 184(3) as because of the traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other resisting the claim. This rule of standing is an essential outgrowth of Anglo-Saxon jurisprudence in which only the person wronged can initiate proceedings of a judicial nature for redress against the wrong-doer. However, in contrast to it, this procedure CP 2167/14 10 is not followed in the civil law system in vogue in some countries. The rationale of this procedure is to limit it to the parties concerned and to make the rule of law selective to give protection to the affluent or to serve in aid for maintaining the status quo of the vested interests. This is destructive of the rule of law which is so worded in Article 4 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot, be confined to the narrow limits of the rule of law in the context of constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2-A), the Fundamental Rights and the Directive Principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam.” In para 13 of the judgment it was further held that even otherwise, the above proceedings are in the nature of public interest litigation and, therefore, in order to advance the cause of justice and public good, the power conferred on this Court under clause (3) of Article 184 of the Constitution is to be exercised liberally unfettered with technicalities. In this regard, reference may be made to the case of D.S. Nakara and others v. Union of India (A.I.R. 1983 SC 130), on which Mr. Samdani has heavily relied upon in support of his case on merits and in which inter alia the following observations have been made which read as follows:-- "64. Locus standi of third petitioner was questioned. Petitioner No.3 is a Society registered under the Societies Registration Act of 1860. It is a non-political non-profit and voluntary organization. Its members consist of public spirited citizens who have taken up the cause of ventilating legitimate public problems. This Society CP 2167/14 11 received a large number of representations from old pensioners, individually unable to undertake the journey through labyrinths of legal judicial proceeds, costly and protracted and, therefore, approached petitioner No.3 which espoused their cause. Objects for which the third petitioner-Society was formed were not questioned. The majority decision of this Court in S.P. Gupta v. Union of India, 1981 (Supp) SCC 87 (A.I.R 1982 S C 149) at p.194), rules that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provisions of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. Third petitioner seeks to enforce rights that may be available to a large number of old infirm retirees. Therefore, its locus standi is unquestionable." 16. The learned Bench further held that the upward revision of pay and pension by the government was in recognition of rising costs of living and escalating inflationary tendency in the economy and also decrease in the economic value of rupee and, therefore, the same consideration should apply to all the pensioners irrespective of their dates of retirement. In the ultimate end the petition was allowed while invoking the jurisdiction of this Court under Article 184 (3) of the Constitution and the notification/enactment of the government denying increase of pension to a particular class of pensioners who had retired from a particular date and giving the same to the other class of pensioners who had retired from another particular date being discriminatory and violative of Article 25 of the Constitution and the prayed relief was thus, granted. 17. In the present case too, the Moharars, Readers and Examiners are holding similar grades/BPS scales like Senior and Junior CP 2167/14 12 Clerks serving in the executive department. We deem it essential to clarify that post and grade are two different nomenclatures. Realizing the mistake committed by the Finance Department, the same was clarified vide letter dated 27.07.1989 holding the petitioners working as Readers, Moharars, Examiners etc. attached to the District Judiciary entitled to the same benefit like others therefore, the objection of the Accountant General or anybody else would be of no legal effect as it would be hit by the prohibition contained in Article 25 of the Constitution. Under Article 5 of the Constitution it is the imperative obligation of the functionaries of the State to abide by the Constitution and the law because it has been held inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. 18. Now we are confronted with another situation because while exercising limited revisional jurisdiction the learned Judge of the Peshawar High Court, Mingora Bench Swat after setting aside the judgment and decree of the Civil Court remanded the case to it with further directions to return the plaint to the petitioners-plaintiffs to approach the Provincial Service Tribunal. In this regard while placing reliance on the dicta laid down by this Court in the case of I.A. Sherwani (supra) it would be highly painful and tiring-some for the petitioners plaintiffs if the case is remanded to the High Court, to be re-decided in light of the above proposition of law and Constitution because they would again incur heavy expenses on the fresh litigation before the High Court, engaging services of lawyers besides it will be time consuming factor as well, while on the other hand they have been given highly discriminatory treatment for no plausible reason whatsoever and deduction is being made from their monthly salaries CP 2167/14 13 or the pensionary benefits, thus, they would suffer agony of a substantial nature. 19. Accordingly, while following the principle of law enunciated in I.A. Sherwani’s case (ibid), and in view of the peculiar facts and circumstances of the present case while invoking the jurisdiction conferred upon this Court under Article 184(3) of the Constitution we hereby declare the impugned action/orders of the official respondents No.1 to 4 to be in violation of strict and prohibitory command contained in Article 25 of the Constitution because the petitioners and proforma respondents/plaintiffs have been treated with sheer discrimination which cannot be approved on any premises whatsoever, therefore, this petition is converted into appeal and the same is allowed. All the deductions so far made from the monthly salaries/pensionary benefits of the petitioners, proforma respondents/plaintiffs and other alike shall be paid to them back within a period of two months by the official respondents and they are further restrained from deducting the same from the monthly salary/pension of the petitioners/proforma respondents, plaintiffs and other alike and all benefits being accrued to them shall be returned by the official respondents in lump-sum within two months at the most. Judge Judge Judge Islamabad, the 16th March, 2016 Nisar /-‘ ‘Approved for reporting’

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, CJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE SH. AZMAT SAEED CIVIL PETITION NO.2222 OF 2016 (On appeal from judgment dated 31.5.2016, passed by the Lahore High Court, Lahore, in W.P. No.12535/2016 and ICA No.1114/2016) M/s. Power Construction Corporation of China Limited (previously Sinohydro Group Limited) through its duly authorized representative Mr. Dai Daliang, No.22, Chegongzhuang West Road Haidian District, Beijing 100048, P.R. China, having a Branch Office at House No.510, Street No.9, F-10/2, Islamabad, Pakistan … Petitioner Versus Pakistan Water & Power Development Authority through its Chairman WAPDA House, Mall Road, Lahore and 2 others … Respondents For the Petitioner : Mr. Salman Aslam Butt, Sr. ASC Mr. Mehr Khan Malik, AOR (absent) For Respondents 1-2 : Mr. Shahzada Mazhar, ASC with Ch. Akhtar Ali, AOR Shahzad, Director (Legal) WAPDA and Inayat Ali, Chief Engineer, WAPDA For Respondent No.3 : Rana Waqar Ahmed, DAG Date of Hearing : 25.10.2016 JUDGMENT SH. AZMAT SAEED, J.- This Civil Petition for Leave to Appeal is directed against the impugned CP No.2222-2016 2 judgment dated 29.6.2016, passed by a learned Division Bench of the Lahore High Court, Lahore, whereby an Intra Court Appeal bearing No.1114 of 2016, filed by the present Petitioner against the judgment dated 31.5.2016, passed in Writ Petition No.12535 of 2016, was dismissed. 2. The brief facts necessary for adjudication of the lis at hand are that the Petitioner is a Company established under the laws of the People’s Republic of China, with a place of business/branch office at Islamabad. The Petitioner Company was apparently established in 1950 and claims experience and expertise in the business of the construction of Hydropower Projects. 3. The Respondent/WAPDA initiated the process to establish and construct a Hydropower Project on the River Indus at Dasu in the Province of Khyber Pakhtunkhwa. The said Project is being partially funded by the International Development Association (IDA), which forms a part of the World Bank Group and, in this behalf, a Finance Agreement was executed between the Government of Pakistan and the IDA on 25.08.2014. Respondent/WAPDA in pursuance of its intention to undertake the project published Specific Procurement Notices (SPNs) inviting participation in the Project CP No.2222-2016 3 initially through pre-qualification. The clause (4) of SPNs provided that such pre-qualification would be effected through “The Procurement of Goods, Works and Non- Consulting Services under the IBRD loans and the IDA Credits & Grants by the World Bank Borrowers” (the World Bank Guidelines). Subsequently, in August, 2014 Respondent No.2 issued Pre-qualification Document (PDQ) for ICB No.DASU-MW-02-Procurement of Main Works, Main Hydraulic Structure, Spillway and Hydraulic Steel Structures (the Main Works-01) and for Hydraulic Steel Structures (the Main Works-02) inviting applications from interested parties for the purposes of pre-qualification. The Petitioner Company submitted two separate applications both dated 28.05.2015 seeking pre- qualification for the aforesaid Main Works-01 and 02. The said applications were processed, with Respondent No.2 i.e. General Manager/Project Director, Dasu Hydropower Project, WAPDA, seeking clarifications and further documentation whereafter the Respondent No.1 i.e. WAPDA appeared to be satisfied and included the name of the Petitioner Company in the list of pre- qualified bidders and transmitted the said list to the IDA as rendered by the World Bank Guidelines. The IDA intimated the Respondent No.1/WAPDA to delete the CP No.2222-2016 4 name of the Petitioner Company from the list of pre- qualified bidders, purportedly in terms of clause 2(a) of the Appendix-I of the World Bank Guidelines. 4. In the above backdrop, Respondent No.2 issued a disqualification notice dated 12.02.2016 to the Petitioner Company with respect to Main Works-01 and 02. The Petitioner Company approached the Respondent No.1/WAPDA to disclose the reasons for such disqualification. Upon failure to receive a satisfactory reply to its application, in this behalf, the Petitioner Company invoked the Constitutional jurisdiction of the learned Lahore High Court, Lahore by filing Writ Petition No.6625 of 2016, which was disposed of vide Order dated 01.03.2016 directing the Respondent No.2 to decide the aforesaid pending application of the Petitioner Company and to act in accordance with law by affording an opportunity of hearing to the Petitioner Company. On 30.03.2016, the Respondent No.2 again held the Petitioner Company to be disqualified from the process of pre-qualification in view of the directions issued by the IDA. The Petitioner Company challenged the aforesaid Order dated 30.03.2016 alongwith the earlier disqualification notice dated 12.06.2016 before the learned Lahore High Court through Writ Petition CP No.2222-2016 5 No.12535 of 2016, which was dismissed vide judgment dated 31.05.2016. Whereafter, the Petitioner Company filed an appeal i.e. Intra Court Appeal No.1114 of 2016 in terms of Section 3 of the Law Reforms Ordinance, 1972, which was also dismissed vide judgment dated 29.06.2016, and the same has been impugned through the instant Civil Petition for Leave to Appeal. 5. The matter came up for hearing before this Court and the notices were issued to the Respondents. On 25.08.2016, the learned counsel for the Petitioner Company referred to para 12 of the judgment of the learned Single Judge, dated 31.05.2016 to indicate the existence of a remedy before the World Bank in terms of Clauses 11, 12, 13 and 14 of the Appendix-III to the Guidelines and sought time to avail the same. The Petitioner Company failed to obtain the desired result. 6. It is contended by the learned counsel that the Petitioner Company is involved in the business of construction of Hydropower Projects for the last more than 60 years and has to its credit the construction of some of the most iconic projects, in this behalf, including the Three Gorges Dams in the People’s Republic of China. The Petitioner Company, it is contended, has the requisite experience and expertise for the construction of CP No.2222-2016 6 the Main Works-01 and 02 of the Dasu Hydroelectric Power Project. The Petitioner Company submitted its bid for pre-qualification, which was complete in all respects supported by the relevant and requisite documentation. The Respondent No.1/WAPDA and its officials, including Respondent No.2 sought various clarifications, which were duly provided. Some further documentation was required, which too was effected, whereafter Respondent No.1/WAPDA and its officials were fully satisfied that the Petitioner Company was entitled to pre-qualification and informed the Petitioner Company accordingly. The subsequent disqualification of the Petitioner Company was without any legal justification, hence, not sustainable. 7. It was urged that pursuant to Article 4(1) of the Constitution of the Islamic Republic of Pakistan, 1973, it is an inalienable right of every person for the time being within Pakistan to be treated in accordance with law, including the law as laid down by this Court. Furthermore, Article 10-A of the Constitution also reinforces equal protection, due process and non- discrimination. The Petitioner Company is functioning within Pakistan and the lis at hand pertains to the award of a contract within Pakistan, hence, the Petitioner CP No.2222-2016 7 Company was entitled to the protection of Articles 4(1) and 10-A of the Constitution. It was further contended that all State Authorities, including the Respondents/WAPDA and its officials, with regard to discharge of their statutory obligations and functions, more particularly, administrative nature, including with reference to the award of a public contract, are obliged to act in a reasonable, fair, transparent, rational, just, non- arbitrary and non-discriminatory manner. Such is the settled law, it is contended, as has been consistently laid down by this Court in its various pronouncements. The impugned judgment dated 31.05.2016, disqualifying the Petitioner Company can by no stretch of imagination, be deemed to be fair, just, transparent or non- discriminatory, hence, not sustainable in law. It was next contended that paragraph 2(a) of the Appendix-I to the World Bank’s Guidelines, at best, only confer upon the IDA. The privilege of making “a reasonable request” to WAPDA to modify the list of pre-qualified bidders or making deletions therefrom. The IDA is not conferred with the power or authority to unreasonably dictate, force or coerce WAPDA to make such deletion from the list of pre-qualified bidders nor is WAPDA bound to blindly follow any such direction, which is not reasonable. In the CP No.2222-2016 8 circumstances, the Respondent/ WAPDA and its officials cannot abdicate their Constitutional and Statutory Obligations in terms of the Articles 4(1) and 10-A of the Constitution to the prejudice and determent of the rights of the Petitioner Company. It was next contended that by way of the impugned judgments, the learned High Court has misconstrued the Guidelines of the World Bank to illegally conclude that Respondent/WAPDA and its officials are bound by the dictates of the IDA in each and every eventuality. It was further contended that by way of the impugned judgments, it has been illegally implied that the Guidelines override the laws of Pakistan, the Constitution and the rights guaranteed therein. The learned counsel for the Petitioner further contended that in the facts and circumstances of the case, the Petitioner Company claimed relief against the Respondent/WAPDA and its officials so as to ensure that the said Respondents acted in accordance with law, as laid down by this Court with regard to the award of the contracts. The Order dated 30.06.2016 of the Respondent/WAPDA is a clear violation of such law and is not sustainable and liable to be set aside. The learned High Court, in fact, it is contended, has failed to exercise the jurisdiction conferred upon it by the Constitution to protect the rights CP No.2222-2016 9 guaranteed by the Constitution, hence, the impugned judgments are liable to be set aside. In support of his contentions, the learned counsel relied upon the judgments, reported as Habibullah Energy Limited and another v. WAPDA through Chairman and others (PLD 2014 SC 47), Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others (PLD 2013 SC 641), Messrs Elahi Cotton Mills Ltd and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582) and Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others (PLD 1993 SC 210). 8. The learned counsel for the Respondents No.1 and 2 controverted the contentions raised on behalf of the Petitioner Company by contending that the Dasu Hydropower Project is of vital importance for the State of Pakistan in view of the current power shortages. The role of IDA is critical to the Project at hand. In addition to the direct funding of US$ 588.4 million, a Partial Credit Guarantee of US$ 460 million has also been provided whereagainst loans are being obtained from Commercial Banks. In the absence of such funding by the IDA, the CP No.2222-2016 10 very project would be jeopardized and its construction and completion difficult. 9. Such funding by the IDA is subject to the various conditionalities, including the World Bank Guidelines for the award of contracts, including the pre- qualification of bidders. Such conditionalities for procurement and award of contracts are catered for by Rule 5 of the Public Procurement Rules, 2004, hence, not only applicable to the bidding process for the award of the contracts but also to the pre-qualification of interested bidders. The applicability of the Guidelines of the World Bank formed part of the bidding documents and were known to the Petitioner Company. 10. It is further contended that the Petitioner Company did not possess the requisite experience and expertise and attempted to rely, in this behalf, upon some allied or sister companies. In such an eventuality, a Joint Venture Agreement was a sine qua non as is mentioned in the World Bank Guidelines. The Petitioner Company chose to file only an Implementation Agreement. It is the case of the Respondent/WAPDA that the Petitioner Company was aware that such an Implementation Agreement alone in the absence of a Joint Venture Agreement would not be acceptable in terms of the World CP No.2222-2016 11 Bank Guidelines as the Petitioner Company had earlier filed a similar Implementation Agreement while seeking pre-qualification for other World Bank Funded Projects i.e. “KKH-2” and RAR-2”, where the Petitioner Company was not pre-qualified. Thus, the entire litigation initiated by the Petitioner Company is not only without merit but also mala fide, hence, no exception can be taken to the impugned judgment dated 31.05.2016. 11. It was next contended that the Petitioner Company was conditionally pre-qualified by the Respondent/WAPDA and such pre-qualification was subject to the provisions of Clause 2(a) of the Appendix-I to the said Guidelines. The IDA, in this behalf, exercised its privilege to ensure fair and effective interpretation of the Project. It was further contended that Clause 2(a) of the Appendix-I to the World Bank Guidelines has been correctly interpreted by the learned High Court and no exception can be taken thereto. 12. Furthermore, in pith and substance, the grievance of the Petitioner Company is actually against IDA which is not a party to the present proceedings, therefore, no relief can be granted to the Petitioner Company. Moreover, the IDA/World Bank is not a person as defined by Article 199(4) of the Constitution of the CP No.2222-2016 12 Islamic Republic of Pakistan, 1973, therefore, could not be subjected to the Constitutional jurisdiction of the learned High Court, as has been correctly held by the learned High Court by way of the impugned judgment. It was added that there was an alternate remedy, which the Petitioner Company could avail in the fullness of time, as has been indicated in the impugned judgment of the learned Single Judge. Consequently, the Petition being without merit was liable to be dismissed. 13. The learned Deputy Attorney General for Pakistan supported the impugned judgment. It was his case that in pith and substance, the Petitioner Company has challenged the decision of the IDA/World Bank, which had immunity in view of the provisions of the International Monetary Fund and Bank Act, 1950, hence, the Constitution Petition was not maintainable and was rightly dismissed. 14. In rebuttal, the learned counsel for the Petitioner Company has reiterated the arguments by contending that the Implementation Agreement constituted a compliance of the requirement of the bidding documents and no reasonable ground existed for the disqualification of the Petitioner Company especially where another Chinese Company has been pre-qualified CP No.2222-2016 13 in identical circumstances. He reiterated that it is the decision of the Respondent/WAPDA, which has been called into question and in the facts and circumstances of the case, the demand of IDA to delete the name of the Petitioner Company from the list of the proposed pre- qualified bidders was not “reasonable” and the Respondent/WAPDA was obliged by law not to accede to the same. Furthermore, in such circumstances, the action of the Respondent/WAPDA was justiciable by the learned Lahore High Court in the light of the judgments relied upon. 15. The learned counsel for the parties and the learned Deputy Attorney General for Pakistan have been heard and with their assistance the available record perused. 16. Before considering the rival contentions advanced by the learned counsels from both sides of the aisle, it would perhaps be appropriate to contextualize the same by referring to the factual backdrop so that the real matter in controversy requiring adjudication may be brought into sharper focus. A Hydropower Project on the river Indus at Dasu was contemplated by the Respondents. In order to raise funds therefor a Finance Agreement was executed between the Government of CP No.2222-2016 14 Pakistan and IDA an organization, which is an integral part of the World Bank Group. Such Agreement was executed on 25.08.2014. It contemplated both a direct line of credit as well as guarantee whereagainst loans could be obtained from Commercial Banks. We are informed that some of such loans have been raised, while the other such facilities are under process. The IDA is to provide a portion of the funds requisite for a rather large project for generation of electricity, which is obviously of a great importance to the State of Pakistan in this age of power shortages. The Finance Agreement contemplated that the award of contracts, including the pre- qualification of the Contractors would be effected through a bidding process in terms of the World Bank Guidelines. 17. In terms of the aforesaid Guidelines, the IDA was directly involved in the preparation of the bidding process. In terms of Para 2(a) of the Appendix-I of the Guidelines, the IDA had a right or a privilege of making a reasonable request for the modification of or deletions from the list of the pre-qualified Contractors. Paragraph 2(a) is reproduced hereunder for ease of reference: “2. With respect to all contracts 77 which are subject to the Bank’s prior review:- CP No.2222-2016 15 (a) In cases where prequalification is used, the Borrowers shall before prequalification submission are invited, furnish the Bank with the draft documents to be used, including the text of the invitation to prequalify, the prequalification questionnaire, and the evaluation methodology, together with a description of the advertising procedures to be followed and shall introduce such modifications in said procedure and documents as the Bank shall reasonably request. The report evaluating the applications received by the Borrower, the list of proposed prequalified bidders, together with a statement of the qualification and of the reason for the exclusion or any applicant for prequalification, shall be furnished by the Borrower to the Bank for its comments before the applicants are notified of the Borrower’s decision, and the Borrower shall make such additions to deletion from or modifications in the said as the bank reasonably requested.” 18. The process was commenced in terms of the said Finance Agreement and the Guidelines referred to above and in this regard Specific Procurement Notices were issued inviting interested parties for pre- qualification. The Petitioner Company participated in the said process. 19. It appears from the record that IDA concluded that the Petitioner Company had applied on a stand alone basis and did not possess the requisite expertise and experience for the Project as the experience and the CP No.2222-2016 16 expertise of the other Companies could not be taken into account as such Companies did not join the Petitioner Company in seeking pre-qualification in view of the absence of an inter se Joint Venture Agreement. Though the Respondents No. 1 and 2 suggested that the Petitioner Company was entitled to be pre-qualified but pursuant to the opinion of the IDA the Petitioner Company was disqualified by the Respondent/WAPDA. Such disqualification is recorded in the two documents dated 12.02.2016 and 13.03.2016. 20. It is in the above background that the Petitioner Company invoked the Constitutional jurisdiction of the learned Lahore High Court through Writ Petition, which on examination reveals that in essence the aforesaid two documents i.e. the Order dated 13.03.2016 and the disqualification Notice dated 22.02.2016 of the Respondent/WAPDA, which have been challenged. It has been noticed that the decision of the IDA concluding that the Petitioner Company was disqualified was not challenged. Even otherwise, the IDA has not been impleaded as a party to the present proceedings. Furthermore, it is no one’s case that IDA is a “person” as contemplated under Article 19(4) of the Constitution, susceptible to the jurisdiction of the learned High Court, CP No.2222-2016 17 in this behalf. The aforesaid leads to an irresistible conclusion that the decision of the IDA and the conclusion drawn by it, that the Petitioner Company was disqualified and not entitled to pre-qualification, was not the subject matter of the lis before the learned High Court nor this Court. 21. Admittedly, the IDA is an International Financial Institution. It is also not disputed that the Finance Agreement has been exceeded between the IDA and the Government of Pakistan with respect to the Project in question. It is also evident that the Finance Agreement provides that the bidding process with respect to selection of Contractors for the Project would be conducted in accordance with the World Bank Guarantees which includes Para 2(a) of the Appendix-I thereof. The compliance with such Guidelines is contemplated by law of Pakistan, more particular, Rule 5 of the PPRA Rules, 2004, which is reproduced hereunder for ease of reference:- “5. International and inter- governmental commitments of the Federal Government. – Whenever these rules are in conflict with an obligation or commitment of the Federal Government arising out of an international treaty or an agreement with a State or States, or any international financial institution the provisions of such international CP No.2222-2016 18 treaty or agreement shall prevail to the extent of such conflict.” 22. The main thrust of the arguments of the learned counsel for the Petitioner Company is that Respondent/WAPDA, in the facts and circumstances of the case, should not have accepted the decision/request of the IDA to delete the name of the Petitioner Company from the list of pre-qualified Contractors as such request was not “Reasonable” as envisaged by paragraph 2(a) of the Appendix-I of the World Bank Guidelines. While we may not be in total agreement with the learned counsel for the Petitioner Company yet what is apparent is that the Respondent/WAPDA choose not to cross swords with the IDA, in this behalf, at the behest of the Petitioner Company. It is this decision of the Respondent/WAPDA not to agitate the matter with the IDA and to accept and comply with its “request” which in fact is the real matter in issue requiring adjudication. 23. The question, which floats to the surface is whether such a decision by the Respondent/WAPDA can be subjected to Judicial Review by the Courts in the exercise of their Constitutional Jurisdiction. 24. The Indian Supreme Court was confronted with not too dissimilar a situation and held in the judgment, CP No.2222-2016 19 reported as Asia Foundation and Construction Ltd. v. Trafalgar House Construction (I) Ltd. and others [(1997) 1 Supreme Court Cases 738], as under:- “It is well known that it is difficult for the country to go ahead with such high cost projects unless the financial institutions like the World Bank or the Asian Development Bank grant loan or subsidy, as the case may be. When such financial institutions grant such huge loans they always insist that any project for which loan has been sanctioned must be carried out in accordance with the specification and within the scheduled time and the procedure for granting the award must be duly adhered to. In the aforesaid premises on getting the valuation bids of the appellant and Respondent 1 together with the consultant's opinion after the so- called corrections made the conclusion of the bank to the effect "the lowest evaluated substantially responsive bidder is consequently AFCONS" cannot be said to be either arbitrary or capricious or illegal requiring court's interference in the matter of an award of contract. There was some dispute between the Bank on one hand and the consultant who was called upon to evaluate on the other on the question whether there is any power of making any correction to the bid documents after a specified period. The High Court in construing certain clauses of the bid documents has come to the conclusion that such a correction was permissible and, therefore, the Bank could not have insisted upon granting the contract in favour of the appellant. We are of the considered opinion that it was not within the CP No.2222-2016 20 permissible limits of interference for a court of law, particularly when there has been no allegation of malice or ulterior motive and particularly when the court has not found any mala fides or favouritism in the grant of contract in favour of the appellant.” 25. The aforesaid passage was quoted with approval by this Court in its judgment, reported as Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455), wherein it was observed as follows:- “Even otherwise, we are living in a globalized world of interdependence; a world where countries and international financial institutions assist and aid the developing countries in their march towards economic progress. International Monitory Fund is one of those institutions which has played its role in several countries. Though its policies some times may be open to criticism but that is for the concerned economists in the government or academics to examine and opine but once the Competent Authority in the government has taken a decision backed by law, it would not be in consonance with the well established norms of judicial review to interfere in policy making domain of the executive authority.” 26. Developing countries like Pakistan may need to invest in a large infrastructure projects to ensure its economic and social development. Such projects are usually very expensive and may require huge funds which may have to be raised through loans. Such loans CP No.2222-2016 21 may be obtained from International Financial Institutions, which are a reality in today’s world and are catered for in the law i.e. International Monetary Fund and Bank Act, 1950. If the loans are obtained from International Financial Institutions like the IDA, the same come coupled with conditionalities, which includes the mod and method of the award of contracts for the Projects and the process of pre-qualifications of bidders. Such conditionalities are also catered for in the law, as is evident from Rule 5 of the PPRA Rules, 2004, reproduced herein above. Thus, obviously, the World Bank Guidelines, including paragraph 2(a) of the Appendix-I thereof and its enforceability and effectiveness are contemplated in law. 27. In the instant case, the decision of the IDA to pre-qualification of the Petitioner Company and make a “reasonable request” for deletion of its name from the list of pre-qualified bidders is not the subject matter of the instant lis, in as much as, the said decision and request by the IDA was not challenged in the Constitutional jurisdiction nor was the IDA impleaded as a party to the proceedings. In the absence of any finding, in this behalf, it is legally impossible to adjudicate upon the CP No.2222-2016 22 reasonableness or otherwise of the “request” by the IDA or to determine whether the Respondent/WAPDA was obliged to accede to such request. The decision of the Respondent/WAPDA not to agitate the matter further with the IDA at the behest of the Petitioner Company is not too difficult to discern. It appears that a pragmatic commercial decision was taken not to jeopardize the funding from the IDA and thereby putting the entire project at risk. Such decision falls within the realm of the Public Policy and the Courts in the exercise of their powers of Judicial Review, ordinarily, do not interfere therewith and exercise judicial restrain, as has been held by this Court not only in the case, reported as Dossani Travels Pvt. Ltd and others v. Messrs Travels Shop (Pvt) Ltd. and others (PLD 2014 SC 1) but also in the judgment, reported as Cutting of Trees for Canal Widening Projects, Lahore: In the matter of Suo Motu Case No.25 of 2009 (2011 SCMR 1743). While we may not totally agree with the interpretation of the paragraph 2(a) of the Appendix-I of the Guidelines, as has been done by the learned High Court by way of the impugned judgments but such an exercise is not necessary by this Court, as in our opinion, the Constitutional Petition filed by the Petitioner Company was not maintainable, as it CP No.2222-2016 23 sought to encroach into the domain of the Policy Matters in respect whereof the judicial restrain is to be exercised. 28. Consequently, we are not persuaded to agree with the contentions raised on behalf of the Petitioner Company or to set aside the impugned judgments. Hence, this Civil Petition is liable to be dismissed and leave declined. 29. These are the reasons of our short Order of even date, which is reproduced as under:- “Learned ASCs for the parties and learned Addl.AG have concluded their arguments. For reasons to be recorded separately, leave is refused and the petition is dismissed. Chief Justice Judge Islamabad, the Judge 25th October, 2016 ‘NOT APPROVED FOR REPORTING’ Safdar & Mahtab

{'id': 'C.P.L.A.2222_2016.pdf', 'url': ''}

{'id': 'C.P.L.A.2222_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 2226 OF 2016 (On appeal against the judgment dated 20.04.2016 passed by the Islamabad High Court, Islamabad in Customs Reference Application No. 31/2015) M/s Al-Haj Enterprises (Pvt) Ltd … Petitioner VERSUS Collector of Customs, Model Customs Collectorate (MCC) etc … Respondents For the Petitioner: Mr. Wasim Sajjad, Sr. ASC Mr. Mehr Khan Malik, AOR For the Respondents: Mr. Muhammad Habib Qureshi, ASC Mr. M.S. Khattak, AOR Mr. Shahid Jan, Deputy Collector Customs Date of Hearing: 22.05.2017 JUDGMENT FAISAL ARAB, J.- Under some arrangement, Attock Petroleum Limited exports POL products to International Security Assistance Force (ISAF) in Afghanistan, which is transported by road through bonded carriers who hold license for such purpose under the Customs Rules, 2001. One such bonded carrier is the petitioner who transports POL products on its fleet of tankers. Rule 564(4) of the Customs Rules, 2001 requires that in case there is a variation of more than one percent in the quantity declared in terms of Rule 563 of the Custom Rules and the one certified by ISAF at the place of destination, action under appropriate provisions of the Customs Act, Sales Tax Act and other applicable law shall be taken against the concerned carrier and other persons found involved. 2. In a post export audit of Attock Petroleum Limited, it transpired that POL products exported to Afghanistan were short supplied. To be precise, CIVIL PETITION 2226/2016 2 16,985 liters of HSD, 396,921 liters of JP8 and 4083 liters of PMG were short delivered that did not reach the destination. These shortages were in excess of the one percent permissible under Rule 564(4). This resulted in issuance of show cause notices to Attock Petroleum Limited as well as to the petitioner to whom Attock Petroleum Limited entrusted the consignments for transportation to Afghanistan, which were found short. Thereafter, the matter was adjudicated by the Collector of Customs, who passed Order-in-Original dated 28.03.2014 requiring the petitioner to pay taxes and duties of the short supplies amounting to Rs.6,070,342/- along with default surcharge. The petitioner appealed before the Customs Appellate Tribunal, Islamabad, which was partially allowed only to the extent of downward revision of the quantum of duties and penalty from Rs.6,070,342/- to Rs.3,622,683/-. The petitioner then filed Customs Reference Application in the Islamabad High Court which upheld the decision of the Tribunal. Hence, this petition. 3. Learned counsel for the petitioner argued that a strict regimented procedure is followed for delivery of POL products as the tankers are locked and sealed and yet evaporation in hot weather is bound to take place that could reach beyond one percent limit for which the petitioner cannot be held responsible. With regard to the restriction contained in the provisions of Rule 564(4) of the Customs Rules, 2001, he submitted that the correct interpretation of the Rule ought to be that in case of variation beyond one percent, then there should be some adjudication as to the real cause behind the shortage. He submitted that in case the carrier justifies the loss for no fault of his own then he should not be penalized for the breach of the limit provided in the Rule. He lastly submitted that in the present case, in absence of allegation that the locks and seals of the tankers were broken or it was a case of pilferage or theft en- route to Afghanistan then merely on account of excessive evaporation beyond the control of the carrier, ought not to have been made basis for imposition of liability under the Rules. CIVIL PETITION 2226/2016 3 4. The argument of learned counsel would have been worth considering had the consequence for short supply beyond one percent not been provided in Rule 564(4) of the Custom Rules, 2001. As the provisions of the said Rule were fully attracted to the case of the petitioner and accordingly applied in the present case, we find that no legal error was committed by any of the forums below, which require interference from this Court. This petition is, therefore, dismissed and leave is refused. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 22nd of May, 2017 Approved For Reporting Khurram

{'id': 'C.P.L.A.2226_2016.pdf', 'url': ''}

{'id': 'C.P.L.A.2226_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Civil Petition No.223-P/2012 (Against the judgment dated 06.03.2012 passed by the Peshawar High Court, Bannu Bench in C.R. No.325-B/11) Sakhi Jan & another …Petitioners Versus Qamar Ali Khan ..Respondent For the petitioners: Mr. Muhammad Javed Yousafzai, ASC For the respondent: Mr. Zafar Iqbal, ASC Date of hearing: 28.7.2021 ORDER MAZHAR ALAM KHAN MIANKHEL, J.- The respondent (plaintiff of the suit) had exercised his right of pre-emption by filing a suit for pre-emption against a sale mutation No.3486 dated 28th July, 2008 for an area of 20 kanals of land purchased by the petitioners (defendants) comprising of four khasra numbers in four different khatas as reflected in the plaint. After a hot contest between the parties, suit of the respondent was partially decreed by the Civil Judge, Lakki Marwat vide his judgment and decree dated 24th March, 2010. The petitioners feeling aggrieved, questioned the same by way of appeal but the appeal was dismissed by the District Judge, Lakki Marwat vide his judgment and decree dated 29th September, 2011 and same was the fate of civil revision of the petitioners before the Peshawar High Court, Bench at Bannu vide judgment dated 6th March, 2012. The petitioners still not satisfied with the findings of the three Courts below, have sought leave to appeal against the impugned judgment through instant petition. C.P.223-P/12 2 2. We have heard the learned counsel for the parties and have gone through the available record. It is evident from the record that respondent was a co-sharer in suit khata No.967/4 khasra No.248. So, the area transferred from the said khasra number in favour of petitioners vide impugned mutation measuring 05 kanals 09 marlas was decreed in his favour. Similarly the petitioners were recorded co- sharers in khasra No.2478 of khata No.205, area measuring 01 kanal and 06 marlas and the respondent having no such right, his suit to that extent was dismissed. 3. It is also an admitted position that both the parties were the contiguous owners to the remaining two khasra numbers i.e. khasra No.2479 of khata No.204 and khasra No.2482 of khata No.966/1 and the trial Court after considering this evidence on the record, divided the suit property of these two khasra numbers in two equal shares under Section 20 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 (the ‘Act of 1987’) and the said findings were upheld by the appellate Court in appeal as well as the High Court in revision. 4. The only question which required our consideration was the distribution of the property under Section 20 of the Act of 1987 between the parties having equal status and right of pre-emption on the basis of contiguity. The pre-emptor/respondent is single and has not joined with him any other co-emptor whereas vendees are two in number and all the three having similar status and right of pre- emption, whether the property has to be divided in two equal shares between the pre-emptor and the two vendees or it has to be divided in three equal shares on per capita basis. The learned counsel for the parties placed reliance on two conflicting views of this Court of two Member Benches one favouring the petitioners and the other the respondent; Khan Gul Khan and others Vs. Daraz Khan (2010 SCMR C.P.223-P/12 3 539) relied upon by the petitioners while Muhammad Tariq and 4 others Vs. Asif Javed and another (2009 SCMR 240) relied upon by the respondent. Both the learned counsel argued that except these two conflicting views, there is no other judgment of this Court interpreting and clarifying the provisions of Section 20 of the Act of 1987. In the given situation, initially we were of the view that the matter be placed before Hon’ble the Chief Justice for constitution of a Larger Bench on the above said conflicting views but Mian Hikmat Ullah, learned ASC, present in Court in some other case, with permission of the Court, submitted that the issue in hand has already been settled by a three Member Bench of this Court and sought some time to produce the said case law. The learned ASC, on the next day, produced almost all the judgments of this Court in which question of Section 20 of the Act of 1987 was dealt with. Relevant in this regard is the case of Faizullah Khan and others Vs. Haji Abdul Hakeem Khan (2011 SCMR 1802). It has also affirmed the two Member Bench judgment in the case of Khan Gul Khan (supra). The crux of the findings is that in such like situations, the property has to be distributed as per capita. Further simplifying the matter, we may add that the number of pre-emptors and the vendees, having the same status and pre-emption right, will get the property under pre-emption in equal shares. The relevant para of the said judgment is reproduced herein below:- “17. It is to be mentioned here that this Court has taken conflicting views in two recent judgments in the cases of Muhammad Tariq (supra) and Khan Gul Khan (supra). In Muhammad Tariq’s case a two member Bench of this Court has held that the Legislature has divided the preemptor and the vendee into two distinct classes, and if the pre-emptor and the vendee have equal right of pre-emption the property would be shared by them equally notwithstanding the C.P.223-P/12 4 number of pre-emptors or the vendees; if the other version of per capita basis is to be accepted then the whole sense of the section would altogether be damaged, all the rulings of this Court are in favour of the division of the property in equal shares i.e. 50/50 or ½ each because the contesting parties are two different classes. Whereas, in Khan Gul Khan’s case another two member Bench of this Court after thorough examination of the case-law on the subject, while taking a different view has held that the conclusion drawn in Muhammad Tariq’s case that legislature has divided the pre-emptor and the vendee into two distinct classes i.e. the pre-emptor and the vendee, is not in consonance with the provisions of section 20; it is the qualification of the vendee which qualified him to share the property in terms of section 20; the law laid down in Amir Hasan’s case and other cited judgments, mentioned therein, is the correct law; therefore, the parties were declared to be entitled to share the property on the principle of per capita”. This judgment was again relied upon by yet another three Member Bench of this Court in the case of Rustam Vs. Aurangzeb and others (2014 SCMR 146). We may add that for the purpose of distribution of property under Section 20 of the Act of 1987, analogy can also be derived from the provisions of Section 9 of the Act of 1987 which reads as under:- “9. Method of distribution of the property where more than one person equally entitled.- Where more than one person are found by the Court to be equally entitled to the right of pre-emption the property shall be distributed amongst them in equal shares.” 5. We appreciate the fair and valuable assistance rendered by Mian Hikmat Ullah, learned ASC, and feel sorry and not happy with the level of assistance rendered by the learned counsel for the parties. Had they been fully prepared and equipped with the latest C.P.223-P/12 5 view of this Court, then the matter would have been decided there and then. 6. In view of the above discussion, we while maintaining the findings of Courts below, modify the judgment of the trial Court dated 24th March, 2010 on issue No.6 and that of the Appellate Court and the High Court and hold that the share and area transferred by way of impugned mutation in khasras No.2479 and 2481 be distributed between the two petitioners/vendees and pre-emptor/respondent in three equal shares on the principle of per capita. Pre-emption amount, if already deposited by the pre-emptor/respondent is in excess, can be withdrawn by the pre-emptor. Needless to say, if pre- emption amount has not been deposited as per decree of the trial Court, the pre-emptor has to face the consequences as per law. 7. This petition is converted into appeal and allowed. Rest of the findings of the Courts below are maintained. Costs should follow the event. Judge Judge Peshawar, 28th July, 2021 APPROVED FOR REPORTING Nasir Khan /-

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{'id': 'C.P.L.A.223-P_2012.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Jamal Khan Mandokhail Civil Petition No.2242 of 2022 Against a short order of the Lahore High Court, Lahore dated 30.06.2022 passed in Writ Petitions No.30456 of 2022, etc. Mohammad Sibtain Khan and others …Petitioner(s) Versus Province of Punjab through its Chief Secretary, Lahore and others …Respondent(s) For the Petitioner(s) : Dr. Babar Awan, Sr.ASC Mr. M. Azhar Siddique, ASC Ch. Faisal Fareed, ASC Mr. Imtiaz Rashid Siddiqui, ASC (via video link from Lahore) Syed Muhammad Ali Bukhari, ASC Mr. Amir Saeed Rawn, ASC Mr. Mazhar Siddique, ASC Mr. Shehryar Kasuri, ASC (via video link from Lahore) Mr. Imdad Hussain Chandio, Adv. Barrister Abdullah Babar Awan, Adv. Mr. Rai Muhammad Ali, Adv. On Court’s Call : Mr. Shahzad Shaukat, AG Punjab. (via video link from Lahore) Barrister Qasim Ali Chohan, Addl. AG Ch. Pervaiz Ellahi, Speaker Punjab Assembly (via video link from Lahore) Mr. Hamza Shehbaz Sharif, CM Punjab (via video link from Lahore) For Respondent#5 : Mr. Mansoor Usman Awan, ASC Mr. Khalid Ishaq, ASC (via video link from Lahore) Date of Hearing : 01.07.2022 O R D E R IJAZ UL AHSAN, J-. The petitioners seek leave to appeal against an order of the Lahore High Court, Lahore dated 30.06.2022 (“impugned order”). Through the impugned Civil Petition No.2242 of 2022 2 2 order passed by a majority of four (04) to one (01), writ petitions filed by some of the petitioners have partly been allowed and it has been directed that a session of the Punjab Assembly be resumed on 01.07.2022 (Friday at 4:00 pm) to hold a poll in terms of Article 130(4) of the Constitution of Islamic Republic of Pakistan, 1973 (“the Constitution”). All the functionaries under the Constitution and the law have been directed to act jointly and severally to implement the directions of the High Court. It has observed that “for clarity it is explained that Hamza Shehbaz shall cease to be Chief Minister, if he loses the required majority after exclusion of 25 votes by Presiding Officer and the communication of his being elected candidate under Rule 21 alongwith Notification dated 30.04.2022 shall deem to have been quashed. Accordingly, it is directed that the Assembly session so resumed shall not be prorogued till the election process is completed and the Presiding Officer (Deputy Speaker) intimates the result of the elected Chief Minister to the Governor under Rule 21 of the Rules of Procedure of the Provincial Assembly of the Punjab, 1997”. It has further been directed that the Presiding Officer shall recount votes after excluding 25 votes (cast by defecting members of Pakistan Tehreek-e-Insaf) already cast in the election held on 16.04.2022. After excluding the said votes, if a majority under Article 130(4) of the Constitution is not secured by any candidate, the Provincial Assembly shall proceed for a second poll for completing the process of the election as required under Article 130(4) of the Constitution. Civil Petition No.2242 of 2022 3 3 2. It may be noted that the Respondents have not challenged the impugned order of the High Court. It is only the petitioners who have approached this Court through this petition inter alia praying that the impugned order dated 30.06.2022 may be amended/modified to the extent of provision of adequate and sufficient time to hold a session of the Punjab Assembly enabling the members to participate in the proceedings by issuance and proper service of notice upon the members of the Provincial Assembly so that they may exercise their right to vote for the election of the Chief Minister, Punjab in a fair and transparent manner. It has also been prayed that the Chief Minister, Punjab may be removed pending the election process due to absence of a valid notification of his appointment and that the Court may grant such time and issue such directions that free and fair election to the office of the Chief Minister, Punjab takes place with the participation of duly constituted Assembly in accordance with democratic norms of the Constitution. By way of interim relief, it has been prayed that during pendency of this petition, the election process may be suspended. 3. We have heard learned counsel for the parties at considerable length and gone through the material available on record. 4. During the course of hearing, we directed personal appearance of Mr. Muhammad Hamza Shehbaz Sharif (“Mr.Sharif”) who had secured 197 votes in the election held on 16.04.2022 and has since been notified as the Chief Civil Petition No.2242 of 2022 4 4 Minister, Punjab vide notification No.SO(CAB-II)2- 12/2018(Vol-I) dated 30.04.2022 and Ch.Parvez Ellahi (“Mr.Ellahi”), who is presently the Speaker, Punjab Assembly and was also a contesting candidate for the office of Chief Minister, Punjab in the election held on 16.04.2022. 5. When Mr. Ellahi appeared before us he stated that some of the members who support him were out of the country for the performance of Hajj or for other reasons and would not be able to participate in the election process. Five (05) members on reserved seats who represent the minorities and women and also support him have not so far been notified by the Election Commission of Pakistan (“ECP”) despite orders passed by the Hon’ble Lahore High Court will also not be able to vote. Further, the seats of 20 members of the Provincial Assembly who had been de-seated on account of defection are vacant and bye-elections to such seats have been announced for 17th of July, 2022. He therefore maintained that presently the House was not complete and it would be in the spirit of the Constitution as well as democratic norms that the election of the Chief Minister, Punjab be held when the House is complete and all eligible members are given an opportunity to cast their votes in accordance with law. 6. On our query, he initially took the position that till the time that the Chief Minister, Punjab is duly elected in accordance with law and the Constitution, the notification of Mr. Sharif may be set aside, he may be removed from the Civil Petition No.2242 of 2022 5 5 office of the Chief Minister, Punjab and some alternate and impartial arrangement may be made to ensure that the election is conducted in a free, fair and transparent manner. 7. On the other hand, Mr. Sharif took the stance that he had no objection if the fresh election for the position of the Chief Minister, Punjab was held after 17th of July, 2022. However, he submitted that he still held a numerical majority in the House and could show such majority if the second poll in terms of Article 130(4) of the Constitution is held today as directed by the High Court. He further submitted that if he is allowed to continue as the Chief Minister, Punjab till the fresh poll is held, he would have no objection to the arrangement proposed by Mr. Ellahi. 8. The parties before us and their respective learned counsel were given time to confer and seek instructions from the top leadership of their respective parties. An agreement was reached between them for a political solution with the consensus of their respective political parties involved in the instant election process, namely, Pakistan Muslim League (N), Pakistan Muslim League (Q) and PTI who are before us. 9. Mr. Babar Awan, learned ASC, who represents the Leader of the Opposition in the Punjab Assembly earlier took a different stance but subsequently after consultation with the Leader of the Parliamentary Party of PTI in the Punjab Assembly as well as the Party Head agreed to the consensus which was earlier arrived at between Mr. Sharif of PML(N) and Civil Petition No.2242 of 2022 6 6 Mr.Ellahi who represents PML(Q), the coalition partner of PTI in the Provincial Assembly but without prejudice to their respective legal and constitutional positions in the interest of resolving the present constitutional impasse. 10. Based on the unqualified consent of all parties before this Court and the assurances obtained by the Court from Mr. Sharif, the following order is passed which would amend and modify and to that extent override the impugned order of the Lahore High Court dated 30.06.2022: i) The second poll for election of the Chief Minister, Punjab in terms of the proviso to Article 130(4) of the Constitution shall be held on Friday, 22.07.2022 at 4:00 pm in the Punjab Assembly Building as suggested by Mr. Ellahi, the Speaker, Punjab Assembly and consented to by Mr. Sharif as well as Mr. Babar Awan, learned ASC representing the Leader of the Opposition in the Punjab Provincial Assembly. The session in which such poll takes place will be chaired by the Deputy Speaker of the Assembly. The Speaker/Deputy Speaker shall issue a formal notification convening the session in this regard after fulfilling all legal and procedural formalities within one week from today; ii) Till such time that the poll as directed above is held in accordance with the Constitution, Mr. Sharif has undertaken before the Court that he and his Cabinet shall exercise the powers and function their offices strictly in fiduciary capacity as envisaged by the Constitution and the law to support the Civil Petition No.2242 of 2022 7 7 process of bye-election in the Province to be conducted in a free, fair and transparent manner by the Election Commission of Pakistan. That such commitment to act as trustees is meant to fulfil the duty of care towards citizens of Punjab so that they are not deprived of due representation and governance, and to avoid any constitutional vacuum, anomaly or complication. However, such entrustment shall continue only till 22.07.2022 when a second poll takes place in terms of Article 130(4) of the Constitution; iii) The Lahore High Court shall issue its detailed reasons for the order dated 27.05.2022 passed in W.P.No.34654 of 2022 in this regard within one week from today which shall be implemented by ECP forthwith by issuing the notification of the names of the candidates against reserved seats in accordance with the directions issued by the Lahore High Court. If any person is aggrieved of any such notification, he/she shall have the right to agitate such grievance before the appropriate forum in accordance with law; iv) Bye-election (due to be held on 17.07.2022) against the seats which had become vacant on account of defection of members of PTI shall be held in a free, fair and transparent manner. The process shall be completed as per the schedule already announced by the ECP. The final result(s) and notification(s) shall also be issued accordingly. Any and all disputes arising out of or relating to such bye-election shall be dealt with by the relevant fora, in accordance with law; Civil Petition No.2242 of 2022 8 8 v) The ECP as well as all relevant State functionaries including members of the Parliament and the Provincial Assemblies, Ministers, Advisors, etc shall ensure that all parties follow the election laws as well as the Code of Conduct issued by the ECP in their letter and spirit and refrain from any interference, inducement or influence in the affairs of the executive, the local administration, the ECP, etc or indulge in corrupt and illegal practices, the use of State machinery in the process of bye-elections, harassment, intimidation or use of law enforcement agencies against opponents/ candidates or their supporters, etc except to restore law and order. vi) No transfers or postings of officials of the local administration, police, Provincial Election Commission, etc shall be undertaken in order to ensure fairness and transparency of the election except in accordance with specific provisions of the Election Act, 2017 and the Code of Conduct to meet emergency situations. Further, no fresh development schemes and/or financial allocations shall be made in the constituencies where the bye-election is to be held till finalization of the bye-election. In the event of violation of the provisions of the Election Act, relevant rules framed thereunder or the Code of Conduct, the ECP shall take appropriate action in accordance with law; and vii) The Speaker, Punjab Assembly has given a categoric assurance that all matters relating to the business of the Assembly shall be handled and dealt with peacefully, Civil Petition No.2242 of 2022 9 9 impartially and transparently within the Assembly Chambers and its relevant offices in accordance with the Constitution, the law and the rules. In addition, all parties including Mr. Sharif have categorically assured and stated that a peaceful and congenial atmosphere will be maintained not only during the poll but also in the proceedings in the Provincial Assembly held thereafter until announcement of the result. We expect that such undertakings and assurances shall be honoured and implemented. viii) It is unreservedly and categorically agreed and undertaken by all parties before us that it is the constitutional, legal and moral responsibility of all political parties and their members/candidates involved in bye- elections and the subsequent voting in the Provincial Assembly to abide by the ECP Code of Conduct and the Rules of Procedure of the Provincial Assembly and the norms/conventions of the parliamentary conduct. 11. Before parting with this order, we wish to record our appreciation regarding the positive and constructive attitude adopted and the role played not only by the top leadership of three political parties involved in the dispute but also by the respective learned counsel. 12. This petition is accordingly disposed of and the impugned order of the Lahore High Court, Lahore dated Civil Petition No.2242 of 2022 10 10 30.06.2022 is modified and amended in the aforenoted terms. Chief Justice Judge Judge ISLAMABAD, THE 01.07.2022 ZR/* Not Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Maqbool Baqar Mr. Justice Mazhar Alam Khan Miankhel Civil Petitions No.2243-L and 2986-L of 2019 (Against the Order dated 18.06.2019 passed by the Lahore High Court, Lahore in W.Ps. No. 9726 & 9729 of 2019) Khawaja Salman Rafique ….(in C.P. 2243/19) Khawaja Saad Rafique ….(in C.P. 2986/19) Petitioner(s) Versus National Accountability Bureau through its Chairman, etc Respondent(s) For the Petitioner(s) : Mr.Ashtar Ausaf Ali, ASC Mr.M. Azam Nazir Tarar, ASC Mr.Muhammad Amjad Pervaiz, ASC assisted by Muhammad Adil Chattha For the Respondent(s) : Mr. Jehanzeb Khan Bharwana, Addl. P.G. Mr. Naeem Tariq, Spl Prosecutor (NAB) Mr. Zawar Manzoor Waraich, Dy. Dir, (NAB) Date of Hearing : 17.03.2020 Maqbool Baqar, J-, “A state which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes--- will find that with small men no great thing can really be accomplished” - John Stuart Mill C.P. No. 2243-L & 2986-L of 2019 2 The prosecution case, as set out in the Reference, is that it was in pursuance of various complaints received from “Members of Public at Large” that an investigation was authorized by the Competent Authority on 6.11.2018. 2. It is alleged that the petitioners, Khawaja Saad Rafique and Khawaja Salman Rafique, the accused Nos. 2 and 3, in connivance with accused No.1, 4 and 5, namely Nadeem Zia Pirzada, Umar Zia and Farhan Ali, and Qaiser Amin Butt (“QAB”), the accused turned approver, launched a housing scheme through a private limited company, namely Paragon City Private Limited, (the Company), by the name of Paragon City, and started collecting money towards booking of plots therein. It is further alleged that though, through letters dated 10.09.2014 and 04.09.2016, Lahore Development Authority (“LDA”), had informed its Town Planning department, the Revenue department Punjab, and the various utility companies/agencies, that the scheme/ project has been launched without any approval from LDA, and had requested its Director Planning to take action against the ongoing development work in the scheme, and had also requested the Revenue department to impose a ban on issuance of “Fard-e-Malkiat”, C.P. No. 2243-L & 2986-L of 2019 3 pertaining to the scheme, however, the accused continued with the project and the booking/sale of plots therein. 3. It is stated that Paragon City, spread over an area of 7002 Kanals of land, was approved by TMA Aziz Bhatti Town, Lahore on 18.01.2005, but the said approval was obtained by the accused on the basis of forged documents, as the accused, at the relevant time owned only 1085 Kanals of land. 4. It is further alleged that the paragon City illegally possessed State/Shaamalat lands comprising a total of 39 Kanal and 13 Marlas in different Mauzas of Tehsil Cantt, Lahore, converted the said lands into residential plots; and sold the same. 5. It is also alleged that the Petitioner Khawaja Saad Rafique, in connivance with Nadeem Zia Pirzada, the accused No.1, illegally occupied 31 Kanals and 80 Kanals of lands owned by some Shahid Butt and Haji Rafique, respectively, converted the said two parcels of land into plots, and sold the said plots as part of Paragon City. 6. It is further alleged that the petitioners acquired 40 Kanals of land in Paragon City in exchange for land C.P. No. 2243-L & 2986-L of 2019 4 measuring 50 Kanals and 3 Marlas. The two are also accused of obtaining 20 plots, measuring 2 Kanals each. It is claimed that though the record shows that the “cost of land of said plots was fully paid but no payment was made to Paragon City (Pvt.) Ltd pertaining to cost of said plots”. 7. It is claimed that the Petitioners are the beneficial owners of the Company, who alongwith Nadeem Zia Pirzada, the accused No.1, in fact hold 93.6% shares therein, whereas, the remaining 7.4% shares are held by the approver, QAB. The affairs of the Company, as per the prosecution, were being managed by the Petitioner, the accused No. 1, and QAB. 8. It is further alleged that amounts in the sum of Rs.6.2 Million and Rs.12 Million were received by the petitioners from the Company, in their respective bank accounts, receipts of which they failed to justify. 9. The Petitioners have also been accused of receiving amounts of Rs.58 Million and Rs.39 Million, from M/s. Executive Builders, which is a partnership concern of accused No.4 and 5, and as per the prosecution, is, under some arrangement with the Company engaged in constructing and selling housing units in Paragon City. It C.P. No. 2243-L & 2986-L of 2019 5 is stated that the said amounts were purportedly received by the petitioners by way of professional fee and consultancy charges, through their proprietary concern namely M/s. Saadian Associates and M/s. KSR Associates, respectively. It is claimed that the firm Executive Builders a “proxy” of the Company and the same, and so also the above business concerns of the Petitioners, have been created and deployed as a mechanism and a ruse, to camouflage the money trail by layering the receipts. The above payment by the Executive Builders, and those also from the Company to the Petitioners, have been described by the prosecution as “illegitimate pecuniary benefits” and “illegal gains”. It is stated that during the last few years an amount of Rs.480 Million has been transferred from the various bank accounts of the Executive Builders to the bank accounts of the Company. It is pointed out that out of the two partners of Executive Builders, one being accused No.4, is the real brother of the accused No.1, and the other, being accused No.5, is the brother-in-law of the Petitioner Khawaja Salman Rafique. 10. It is stated that the Bureau has received complaints from 68 different persons from whom the Company received payments towards allotment of plots, however, C.P. No. 2243-L & 2986-L of 2019 6 neither have the plots been delivered nor is the money being refunded to them. 11. Though the facts contained in the instant paragraph do not seem to be of much relevance, but, having been narrated in the Reference, are for the sake of completeness, also being mentioned herein. It is stated that in the past also the Petitioners and accused No.1, alongwith QAB, have jointly ventured into real estate development business. The Petitioner Khawaja Salman Rafique has so ventured directly, whereas, the Petitioner Khawaja Saad Rafique has participated therein through his wife Ghazala Saad Rafique. It is thus stated that the Petitioner Khawaja Salman Rafique, alongwith Ghazala Saad Rafique, Shama Nadeem (wife of accused No.1), and two others, namely Ziauddin Pirzada, and Haji Muhammad Amin Butt, established a private limited company by the name of M/s. Debonair (Pvt.) Ltd., which was so registered with SECP on 18.09.1997. The Company purchased lands in Mauzas Jaspal, Malik Pur and Jughian in Lahore, and on 11.04.2000 obtained an NOC from Military Estate Officer Lahore Cantonment for developing a housing scheme thereon under the name and style of Air Avenue Housing Scheme, However, the scheme was not launched and the land was instead sold C.P. No. 2243-L & 2986-L of 2019 7 to M/s. Arban Developers and Eden Development (Pvt.) Ltd., It is alleged that the proceeds of the above sale were received by M/s. Debonair (Pvt.) Ltd., in its three bank accounts which were being operated by Qaiser Amin Butt, Khawaja Salman Rafique, Shama Nadeem and Nadeem Zia. It is further stated that the same set of persons, who were directors in M/s. Debonair (Pvt.) Ltd. with the substitution of Haji Muhammad Amin Butt, by his wife, Safia Begum, entered into a partnership, which firm was registered with the Registrar Division by the name of M/s. Debonair (AOB) on 30.06.2000, however, nothing more is said about the said firm. 12. The two amongst the above Directors/partners, namely Nadeem Zia and QAB, on 25.06.2003, established a private limited company, which was registered with the SECP on 25.06.2003 by the name of Air Avenue (Pvt.) Ltd and it was on 11.08.2003 that the name of the Company was changed to Paragon City (Pvt.) Ltd, the company. 13. Admittedly, the record reveals that it is only Nadeem Zia Pirzada, the accused No.1, and QAB, the purported C.P. No. 2243-L & 2986-L of 2019 8 approver, who are the directors of the Company. The prosecution has not drawn our attention to any document or material that establishes the petitioners’ control of or any direct relation with the company. Indeed, as noted above, certain payments by the Company and its so called “proxy”, M/s. Executive Builders, have been made to the Petitioners, the relevance, effects and implications whereof shall be discussed in the latter part of this judgment. The linchpin of the prosecution case, so far the alleged connectivity of the Petitioners with the affairs of the Company, and their direct financial interest therein, which may tend to make them liable for any malfeasances or misfeasance of the Company, is concerned, is the purported statement of QAB, that he allegedly made under Section 26 of the NAO, 1999 and Section 164 of the Cr.P.C. on 06.12.2018. 14. The intrinsic value of the purported statement, examination and analysis of its contents, and the facts leading to the recording of the statement, alongwith the circumstances and the manner in which it was purportedly recorded, shall be made and discussed in a while. We may, however, observe here that the gist of the statement is that the petitioners are the major C.P. No. 2243-L & 2986-L of 2019 9 shareholders in the company, and that the company is in fact being managed by them through Nadeem Zia, the accused No.1, who has been working for and with them since 1997, which is also the year since which QAB also has been their associate. 15. Before examining and analysing the contents of the purported statement and evaluating its intrinsic value, we cannot resist expressing our shock and dismay over the facts leading to the recording of the statement, the circumstances and manner in which it was recorded. The whole episode lays bare the prosecution’s conduct and is a clear manifestation of their scant regard for the mandate of the law and the principles of fairness, equity and propriety. Before we proceed to record the events culminating in the recording of the purported statement dated 06.12.2018, it may, for a better appreciation of the matter, be noted that the aforesaid statement is not the only statement that QAB purportedly recorded under Section 26 of the NAO. In fact earlier too, a statement under the above provision was recorded by QAB before a Magistrate. It appears, however, that since the same did not inculpate the petitioners in the so-called, alleged or perceived offence, the pardon tendered to him on 23.11.2018 was withdrawn. C.P. No. 2243-L & 2986-L of 2019 10 16. In order to have a full view of the matter, it may be noted here that QAB was arrested from Sukkur on 14.11.2018. His transitory remand was obtained from an Accountability Court up to 19.11.2018, on which date he was produced before the Administrative Judge, Accountability Court, Lahore, where QAB’s physical remand was granted upto 04.12.2018. On 20.11.2018 QAB purportedly submitted to the Chairman NAB (“the Chairman”) an application seeking pardon under Section 26 of the NAO. Through order dated 23.11.2018, the Chairman was pleased to approve tender of pardon to QAB, subject to his making disclosure in terms of Section 26 of the NAO. Resultantly on 26.11.2018, QAB purportedly recorded his statement before a Magistrate. As noted in his second application dated 30.11.2016 (in pursuance whereof QAB recorded the statement dated 06.12.2018, referred to herein before), however, “due to disturbing situation created by the gathering of various unidentified lawyers and private persons he could not disclose full and true facts” within “his knowledge relevant to the offence”, as per his statement before the Chairman NAB. Consequently, the Chairman through order dated 26.11.2018, withdrew the pardon tendered by him to QAB on 23.11.2018. C.P. No. 2243-L & 2986-L of 2019 11 17. It was through the aforementioned application dated 30.11.2018 that the latter once again offered to record his statement and enclosed therewith a copy of a detailed statement purportedly recorded by him before the Investigation Officer the same day. QAB also undertook to make a statement in terms of Section 26, NAO before a Magistrate after being tendered full pardon in the case. However, it was only on 04.12.2018, the day the physical remand of QAB was expiring, that the prosecution filed an application for transitory remand of QAB for producing him before the Chairman for pardon. The application dated 04.12.2018, however, made no mention of QAB’s earlier statement under Section 26 NAO, the grant of pardon and its subsequent withdrawal. Through another application filed alongwith the above application, the prosecution also sought 15 days’ physical remand of QAB. The remands, as requested, were granted by the Court the same day. 18. Through a written statement dated 05.12.2018, signed by QAB and counter signed by the Chairman, QAB undertook to give statement, as an approver before the Magistrate as offered by him. By an order of even date, the Chairman, whilst, tendering pardon to QAB, C.P. No. 2243-L & 2986-L of 2019 12 subject to his making full disclosure, observed that “if pardon is granted to the accused Qaiser Ameen Butt, more confidence inspiring evidence will come on record, strengthening the prosecution case against his co-accused persons, which evidence was not directly available against the accused”. Through application dated 06.12.2018, the prosecution requested the Judicial Magistrate, Lahore to record the statement of QAB under Section 26 of the NAO. Nevertheless, there was no mention of such statement previously made by QAB. The Magistrate granted the application and proceeded to record the statement the same day, without any notice to the petitioners and the other co- accused, thus depriving them of their right to cross examine the witness, which is a flagrant violation of the essential requirement of the provision of subsection (1-A) of Section 164 Cr. P.C. It has also not been claimed the approver was informed by the Magistrate that upon conclusion of his statement, his custody shall not be remitted back to the prosecution. The statement thus, also failed to meet the criteria prescribed by the provisions of Section 265-J, Cr.P.C., for it to be admitted as evidence, even if it had fulfilled the other requirements of admissibility. The statement in these circumstances C.P. No. 2243-L & 2986-L of 2019 13 failed to conform to the principles enunciated by the superior courts, also. In the case titled as NAB v Hudaibya Paper Mills 2018 PLD 296 it was observed by this Court: “To enable a statement recorded under section 164 of the Code to be used against an accused, it must be recorded ‘in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement.” In the case Azeem Khan v Mujahid Khan 2016 SCMR 274 while discussing the intent and purpose of Section 164 the court observed as following: “…all signs of fear inculcated by the investigating Agency in the mind of the accused are to be shedded out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused shall be assured that now he was in the safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view of the accused. After observing all these legal requirements if the accused person is willing to confess, then all C.P. No. 2243-L & 2986-L of 2019 14 required questions formulated by the High Court Rules should be put to him and the answers given, be recorded in the words spoken by him”. In Abdul Sattar v The State PLD 1976 SC 404 it was pointed out: “As to how far the evidence of the approver can be accepted to substantiate the prosecution case, it may be conceded at once that he is a competent witness (section 133 of the Evidence Act). But the Courts have invariably in such cases followed the rule of common prudence enshrined in illustration (b) to section 114 of the. Act and insist on independent corroboration of the evidence of an approver in material particulars. This rule though a rule of practice has acquired the rigidity of law. See Abdul Qadir v. The State (P L D 1956 S C (Pak.) 407 J) which followed R. v. Baskerville ((1916) 2 K B 658).” Similarly, in the case of Federation of Pakistan v Muhammad Shafi Muhammadi 1994 SCMR 932, the following principles were enunciated: “The rule of prudence that the testimony of an approver or accomplice is to be corroborated in material particulars by independent evidence has almost hardened into a rule of law with the passage of time and because of the invariable insistence of the Superior Courts to have corroboration.” C.P. No. 2243-L & 2986-L of 2019 15 “An accomplice who takes part in the commission of the offence for which his co‑accused is charged with falls within the category of a wicked person in terms of the above verse of the Holy Qur'an and, therefore, before acting upon his testimony, the truthfulness of it is to be verified by corroborative pieces of evidence on material particulars.” QAB’s statement, thus, insofar as he was not informed that he would not be returned to the custody of the Bureau and also for the reasons that neither any notice of his recording the statement was issued to the petitioners, nor were they otherwise provided any opportunity to cross examine him, render his statement irrelevant. Additionally, keeping in view that it otherwise finds no corroboration by any means whatsoever, QAB’s statement has absolutely no bearing on the case. However, far more devastating is the fact, as noted earlier, that it was through the second attempt only, that the prosecution was able to procure the purported statement dated 06.12.2018, having failed to secure a statement inculpating the petitioners in the alleged/perceived offences, and/or even attributing to them any shareholding in the company, and/or establishing their control over its affairs. Even, more C.P. No. 2243-L & 2986-L of 2019 16 alarming is the fact that the Judicial Magistrate, Lahore after recording statement of QAB on 26.11.2018, instead of sending him to judicial custody had delivered his physical custody to the prosecution, which is against all norms of justice, fair play and propriety. It appears that the prosecution sought QAB’s physical remand in addition to his transitory remand, for a period longer than fifteen days with a two-pronged strategy: On the one hand it was able to exert pressure on QAB when he recorded his statement. In the event he would have failed to inculpate the petitioners, the prosecution could have continued to hold him and, thus, coerce him into submitting to their will and command by recording any statement they desired. However, a perusal of the statement, the gist whereof has been noted herein earlier, and its complete summary is annexed hereto as Annexure ‘A’, would show that all the efforts made by the prosecution in procuring the same have gone in vain, since it hardly contains anything which lends credence to the prosecution case or furthers their endeavour to lay blame for any alleged or perceived infraction by the Company on the petitioners. 19. The Statement is completely bereft of necessary particulars and much of it contents are absolutely C.P. No. 2243-L & 2986-L of 2019 17 irrelevant. QAB’s claim of petitioners’ shareholding in the company and their control over it is wholly contrary to the record. No details, particulars, document and/or material, either official, financial, personal or relating to any business deal, transaction, undertaking, or arrangement, or any kind of correspondence in support of such claim, has even been referred to in the statement. Additionally, the prosecution has not been able to refer to or rely upon anything to substantiate the statement, or the allegations contained therein, nor has it mentioned of any other witness who supports QAB’s purported stance. No question was put to the petitioners with respect to their alleged shareholding in or control of the company through the call up notices placed before us. However, even if the relevant contents of the purported statements are presumed to be true and correct, the same also do not, by themselves, constitute any offence or wrong doing on the part of the accused, attracting the provisions of NAO, 1999. 20. Reverting to the various allegations contained in the Reference, which according to the prosecution, constitute acts of corruption and corrupt practices within the meaning of Section 9 of NAO,1999, we may first deal with the allegation that although LDA, had through its letters C.P. No. 2243-L & 2986-L of 2019 18 dated 10.09.2014 and 04.01.2016, informed its director Town Planning, the Collector Revenue department, Punjab, Lahore, and the various utility companies/agencies, that the sponsors of Paragon City have launched the said scheme within the controlled area of LDA, without prior permission from the competent authority, and are carrying out construction and development work, and sale/purchase of plots therein, without the requisite approvals and also asked its directors to take legal action against such development and requested the Collector Revenue not to issue Fard-e- Malkiyat and register, or attest any document pertaining to the scheme. The LDA also requested the utility providers to stop/discontinue such provisions, but the accused persons continued with the development of the scheme and booking/selling of plots therein. In this regard it may be noted that the scheme, as noted in the Reference itself, was approved by TMA Aziz Bhatti, Lahore way back in January, 2005 and as mentioned by QAB in his statement under Section 26 of the NAO, (relied upon by the prosecution for roping in the petitioners in this case,) was launched the same year, i.e. the year 2005. The prosecution and/or the LDA has thus far not mentioned/disclosed, since when, or under what C.P. No. 2243-L & 2986-L of 2019 19 law, notification, or scheme, to what extent, and in what manner, the area in which Paragon City is situated, fell within the jurisdiction of the LDA. It is also not submitted as to why and to what extent did the scheme require an approval from the LDA to begin with. It was not even claimed that the LDA ever sought any such submission or regularization from the company. It has also not been submitted as to what could be the consequences of noncompliance with the provisions, if any, in that regard, and whether such non-compliance triggers any penal action, and if so, under what circumstances. We have also not been apprised regarding the nature of these penal consequences to initiate such action, and whether any warnings were issued by the LDA or any other relevant department before proceeding in that regard. It is also worth asking if the public at large were cautioned regarding the violation of any law, rule or regulation by the company in relation to Paragon City. Little was offered by the prosecution in the way of details about the extent of the scheme’s development and as to how many plots/properties have been sold by the time Paragon City allegedly fell within the jurisdiction, control and competence of LDA. NAB has not even claimed putting any question to the petitioners, regarding C.P. No. 2243-L & 2986-L of 2019 20 the permission, either through their call up notices or otherwise, nor have they implicated any public functionary in this regard. There is absolutely no allegation that any buyer/purchaser in Paragon City was deprived of his accrued/vested rights, on account of the alleged lack of permission and/or approval. It has been admitted that out of 8,000 purchasers, NAB received complaints only from 68 though the Petitioners have been operating the Scheme since last 16 years. 62 of these complaints have admittedly been settled, affidavits of the complainants in this regard duly verified by the NAB have been placed before us. How in the above backdrop could the alleged development work and sale then fall within the ambit of Section 9 of the NAO, 1999. In any event, and as noted earlier too, since the prosecution has thus far not been able to connect the petitioners with the company in the manner so that they may be held liable for its acts, deeds and conduct, the allegations dealt through the instant paragraph, in so far as the petitioners are concerned, are wholly irrelevant and inconsequential. 21. Secondly, it is alleged that while the approval for Paragon City was obtained by the accused from TMA Aziz Bhatti, Lahore in 2005 for an area of 7002 Kanals, they C.P. No. 2243-L & 2986-L of 2019 21 only held 1085 Kanals of land at that time. It is thus alleged that the approval, to the extent of the remaining land was based on forged documents. However, no documents were referred to in this regard, nor were any particulars mentioned. It is also not claimed that the TMA or any other department, took cognizance of the alleged fraud, or whether any action was ever initiated against anyone including the functionaries of the TMA, who could have been responsible for the same. It is also not alleged that any portion of the land comprising Paragon City, except the purported Shaamalat lands, or those which allegedly belonged to Shahid Butt and Haji Muhammad Rafique (the allegations regarding which three lands shall be dealt with in a while) did not belong to the company at the time of development and sale of the plots/properties in Paragon City, and/or that any of the company’s buyers/customers were deprived of their purchase, or of any of their rights in relation thereto, on account of above alleged fraud. With regard to the instant allegation too, no witnesses were mentioned, nor was any question put to the petitioners. No public functionary has been implicated in relation to the instant allegation either. C.P. No. 2243-L & 2986-L of 2019 22 22. As regards the State/Shaamalat lands, it may be noted that neither any notification nor any map or documents establishing the size thereof as claimed (39 Kanals) existed in the area, over which the Paragon City has been developed. In any event, there is absolutely no allegation of any violation of the permission granted by the TMA in relation to the scheme. It is also not clarified as to how much of the 39 Kanals of land comprised Shaamalat and how much of it was of other nature/category. It may be relevant to note here that Shaamalat lands belong to the village proprietary body and are used by the village community as a common village facility, whereas after purchase of the land/area, wherein Shaamalat existed, from its various owners/villagers, the company, after obtaining permission from the relevant TMA, has developed it into a housing scheme. It is also relevant to note here that Paragon City is spread over vast area of 7002 Kanals, and it has not been alleged that the scheme does not contain any common facilities for the community it houses, and certainly there is no concept of a housing scheme without roads, streets, parks, playgrounds, walkways, open spaces and other public facilities/utilities essentially required for a modern day C.P. No. 2243-L & 2986-L of 2019 23 living. In any case this is a matter, which, as presented before us, can only be thrashed out after a detailed factual enquiry. 23. With regard to the State land, which possibly comprised abandoned parks, passages and water courses or ponds, which may be falling within the area of Paragon City, the learned counsel for the petitioners has submitted before us, a copy of a Gazette Notification dated 13.09.2019, issued by the Government of Punjab, Colonization Department, Board of Revenue, under Section 109 of the Colonization of Government Land (Punjab), Act, 1912, which contains a statement of conditions, for disposal of abandoned parks, passages and water courses or ponds falling within a private housing scheme through exchange with the land of the said scheme, in terms whereof the housing scheme wherein lies the above said facilities/lands, shall provide in exchange thereof, an accessible equal piece of land in a compact block within the said scheme. It also provides that the “State land utilized by a private housing scheme shall be dealt with on the above analogy”. Learned counsel also placed before us a photocopy of a notice dated 29.01.2020, issued by Additional Deputy Commissioner (Revenue) Lahore, whereby the company C.P. No. 2243-L & 2986-L of 2019 24 has been required to submit a proposal for exchange in terms of the above notification within 10 days. Learned counsel submitted that in view of the foregoing, there was no occasion for invoking the provisions of NAO with regard to the instant issue and the company may be allowed to respond to the notice in accordance with law. We found the contention to be just, fair and lawful. 24. The allegation of illegal occupation of Shahid Butt’s land, also are as tenuous are the other allegations dealt with herein before. Neither any survey number or any other description of the land, or its location is given, nor is it explained as to, how, under what circumstances, or when, the land was occupied. Contrary to what has been attempted to be portrayed, it was not a matter of simple occupation of any land, but a business dispute between the parties pertaining to a joint venture, in terms whereof Shahid Butt handed over certain land to the company for developing it as a separate block of Paragon City, and to construct housing units therein, and as evident from the various documents placed before us, being (i) agreement dated 10.10.2015, executed between Paragon City (Pvt) Limited (through its chief Executive, the accused No.1), and Imperial Developers (through its Chairman Shahid Butt)(pages 348 to 350, CPLA 2243), (ii) the plaint in a C.P. No. 2243-L & 2986-L of 2019 25 suit filed by Shahid Butt against Paragon City (Pvt) Limited for declaration and injunction before a Senior Civil Judge, Lahore on 17.01.2016 (pages 87 to 92, CPLA No.1168/2020), (iii) the plaint in a suit filed by Paragon City (Pvt) Limited for recovery of money, declaration and injunction, before a Senior Civil Judge, Lahore on 08.09.2018 (pages 101 to 111, CPLA 2243/2019) and (iv) the application/statement dated 20.11.2019, filed by Shahid Butt before Senior Civil Judge, Lahore for withdrawal of his above suit, the dispute between Shahid Butt and Paragon City (Pvt) Limited was purely of a civil nature, involving commercial, financial and business disputes pertaining to the development of a housing project, reimbursement of certain investment, and sharing of profit between them. The afore-noted agreement dated 10.10.2015, thus reflects that there was some money dispute, accounting issue pertaining to the development charges of a housing project, namely Imperial Garden, and that attempt to settle and resolve the same as agreed between the parties through a third party intervention earlier, hit snags because of varied/divergent perceptions of the parties, and it was in terms of the said agreement that they agreed to remove C.P. No. 2243-L & 2986-L of 2019 26 the same through a facilitator named therein, and to finalize the accounts in terms of the earlier agreement. 25. Whereas through his above suit, it appears, that Shahid Butt sought to revive/protect his purported title in respect of certain lands, in all measuring about 3 Kanals and 8 Marlas, that he allegedly purchased in the year 2017, and sought cancellation of mutation thereof in favour of the company. Shahid Butt claimed that after purchasing the said land he merged the same into a housing scheme namely, “Paragon Homes”, constructed houses thereon, and sold the same to different parties, and that various families are living therein. It was further alleged that the company on the basis of false and bogus sale deed claimed to have purchased 1 Kanal and 12 Marlas and 5 Kanals and 3 Marlas land in the years 2003 and 2008 respectively, and successfully sought mutation of the land so purchased by them, after cancellation of the mutation of the portion of such land that was earlier affected in favour of Shahid Butt. Shahid Butt sought a declaration that he was the owner of the land as claimed by him and that the purported sale deeds in favour of the company have no bearing on his above title. He also prayed for a decree, ordering cancellation of the above mentioned mutations and for C.P. No. 2243-L & 2986-L of 2019 27 permanent injunction, restraining the company from disturbing his possession of the said land. 26. Whereas the case of the company, as set out in its above plaint, was that under an agreement dated 28.11.2006, executed between the company and Shahid Butt, the latter delivered to the former, possession of his land measuring 1067 Kanals and 8 Marlas for developing the same into a housing scheme. It was claimed that the agreement stipulated that the company shall finance build and develop the scheme and that amounts at the rate of Rs.800,000/- per Kanal shall be reimbursed to the company by way of development and construction charges and that the company shall be entitled to 60% share in the profits earned from the scheme. It was alleged that though the reimbursement as agreed was made but the amount of profit remained unpaid. It was further claimed that in addition to developing, building and financing the scheme, the company also contributed its land for the scheme, and that, in lieu thereof the company was to be given plots consisting of 55 Kanals in the “Imperial Garden”. As per the plaint, the company’s share in the profits was mutually calculated at Rs.340,006,448/-. It was further averred that Shahid Butt also acknowledged that he has occupied the 55 C.P. No. 2243-L & 2986-L of 2019 28 Kanals land agreed to be given to the company, and promised to pay an amount of Rs.970 (m) towards the price of the said land. He, however, delivered to the company, 94 housing units only. It was also claimed that after mutual accounts taking Shahid Butt’s liability was determined at Rs.84(m), which liability he acknowledged and undertook to liquidate by appending his signature on the statement/document drawn in this regard, but resiled from his commitment and avoided payment on one pretext or the other. The matter was thus submitted to arbitration. Shahid Butt failed/avoided even to honour the arbitral award/settlement. It was further alleged that Shahid Butt also occupied 22 housing units, which he delivered to the company towards partial settlement of his liability. The company prayed for a declaration that it was a shareholder in the Imperial Gardens block/project and is entitled to all the 94 housing units built therein and for payment of Rs.84(m) from Shahid Butt. 27. The position that emerges from the foregoing, and as also acknowledged by Shahid Butt, in very clear and categorical terms, in his aforementioned application/statement whereby he withdrew his suit, is that the dispute between the parties was purely of a civil nature, arising out of a business/commercial C.P. No. 2243-L & 2986-L of 2019 29 undertaking and a joint venture, mainly involving and pertaining to settlement of accounts. In his aforesaid statement/application Shahid Butt has clearly stated that the dispute between him and the company stems from the business relationship between him and the company. He acknowledged that it was under and in terms of a collaboration agreement dated 01.11.2006 that a housing block / scheme by the name of Imperial Gardens was developed under the umbrella of Paragon City (Pvt) Limited. However, issues in relation to the operation, execution and accounts pertaining to the project arose between the parties from time to time, resulting in litigation, which have been settled amicably and, therefore, he be allowed to withdraw the suit. The suit was thus dismissed as withdrawn. It may be interesting to note here that even the statement made by Shahid Butt before the Investigating Officer in this case, which forms the very basis of the present allegation, also very clearly depicts the nature and the substance of the dispute between the parties as discuss above. 28. The allegation of occupying Haji Muhammad Rafique’s land is also equally weak and sketchy. However, in that regard, it may be noted that, as can be seen from (i) the agreement dated 26.08.2006, executed C.P. No. 2243-L & 2986-L of 2019 30 between Haji Muhammad Rafique and co-accused No.1, as Chief Executive of the company, to refer their dispute to arbitration, (ii) the declaration of Award dated 31.01.2019, and (iii) the order dated 05.11.2015, in terms whereof a learned Senior Civil Judge, Lahore made the said Award a Rule of the Court (pages 351 to 355 and 365 to 370 respectively of CPLA No.2243/2019), several issues and disputes pertaining to sharing of expenses towards certain development/amenities, in respect of their respective housing scheme, and in relation to certain land purchase transactions entered into by each of them with different parties separately, resulting into both of them claiming their right/interest over the same lands, and also in respect of exchange of certain lands, arose between them, and that it was through the above noted agreement dated 06.08.2006, that the parties agreed to refer the said disputes/issues to an arbitral panel, who upon conclusion of the proceedings before them made an Award in the matter on 26.08.2006. The Award, inter alia, unanimously provided that: “(viii) the Arbitrators have unanimously held that Haji Muhammad Rafique shall deliver the vacant possession of the land measuring 163 Kanals and 17 Marlas situated at Dogra-e- Khurd, Tehsil Cant, District Lahore, to M/s. C.P. No. 2243-L & 2986-L of 2019 31 Paragon City (Pvt) Ltd, in lieu of land measuring 163 kanals 17 marlas of village Kalaas Marri, Tehsil Cannt, District Lahore, (the detailed description of the land is appended herewith and will constitute an integral part of this Award). This exchange shall be accomplished by both the parties strictly in accordance with the measurement described in the appended details. As per relevant revenue record, Paragon City will hand over the vacant possession of the above mentioned land measuring 163 Kanals and 17 Marlas in Klass Mari to Haji Rafiq. 29. The above Award was submitted before Civil Judge, Lahore. The learned Judge after considering the objections, filed by Haji Muhammad Rafique under Section 30 of the Arbitration Act, 1940, and hearing the parties, made the Award a Rule of the Court. The said Award/Rule has however been challenged by Haji Muhammad Rafique before the Lahore High Court through FAO No.365 of 2015, which is pending. 30. The reference also set out two different allegations regarding land transactions between the Petitioner and the company, one specifies exchange of certain lands and the other accuse the petitioners of wrongfully acquiring 20 plot of land without any payment. As regards the C.P. No. 2243-L & 2986-L of 2019 32 exchange of land it was alleged that the Petitioners exchanged their 39 Kanals and 19 Marlas and 10 Kanal and 4 Marlas lands with the company’s lands measuring 32 Kanals and 8 Marlas, and as regard the alleged wrongful acquisition of the plots, it was stated that the Petitioners “wrongfully acquired 20 plots of 2 Kanal each from Paragon City (Pvt) Ltd. The files record shows that cost of land of said plots was fully paid but no payment is made to Paragon City (Pvt) Ltd”. However, subsequently, through its summary of the case, submitted before us, NAB changed its stance. The new version shows that the land measuring 32 kanals and 8 marlas, which the petitioners received from the company in exchange for their above land was in fact so received in the shape of the said twenty (20) plots and that the acquisition of the said plots, was not a separate or additional transaction. The above factual position was known to NAB since the very inception, as in response to their call up notices the petitioners through their respective letter dated 29.03.2018, 28.03.2018 and 05.04.2018, provided to NAB complete details regarding the subject transaction. Not only did they repeatedly furnish to NAB the area/measurement of the lands exchanged, their locations, the designated number of the twenty (20) plots C.P. No. 2243-L & 2986-L of 2019 33 situated in the land received in exchange; but also provided to them a detailed lay out plan highlighting the exact location of the said twenty (20) plots. The petitioners through the above letters also informed NAB that in terms of the exchange transaction they are also required to pay to the company, development charges in the sum of Rs.15,000,000/- in respect of the said plot, and have already paid to the company an amount of Rs.26,47,060/- on that account. Thereafter, despite a long que of call up notices NAB neither raised any query, nor conveyed any objection with regard to the exchange in question, however, during his argument before us the learned DPG NAB submitted that the Petitioners have unduly enriched themselves by getting developed plots in exchange for their undeveloped land. In this regard, it may be noted that in the first place the petitioners have parted with a substantially large piece of land, most of which is situated in the same mauza as are the subject plots, secondly, in addition to the said land, and as noted above, the Petitioner are also paying to the company charges for the development of the land converted into plots, thus the weight of the development probably goes off the scale. In any event despite having all the required information and details, NAB has failed to place before us C.P. No. 2243-L & 2986-L of 2019 34 any material to show, or to otherwise persuade us to believe that the exchange was unfair and/or that the petitioners have through the said transaction illegally enriched themselves at the cost of the company. In any view of the matter, since the transaction was between private individuals / entities, who were free agents, and has/had no bearing on any public or governmental interest, no exception to the same could have possibly been taken by NAB. 31. As regards the allegation of receiving amounts approximately in the sum of Rs. 6.2 Million and Rs.12 Million by the Petitioners from the company, it may be noted that through their earliest letters, as placed before us, which are dated 20.03.2018 and 23.03.2018, the prosecution has, inter alia, sought from the petitioners details of “services/financial transactions executed between them and the company, and the benefits drawn against such services/transactions, if any”. In response, the petitioners under cover of their letters dated 28.03.2018, 29.03.2018 and 05.04.2018, and through annexure “C” thereto, have furnished to NAB the relevant information and details, wherein the amount of commission received by the petitioners from the company for the services rendered by them for purchase of lands C.P. No. 2243-L & 2986-L of 2019 35 by the company from its various owners during the year 2010 to 2013 have been mentioned year-wise. The statements also specify the amount of income tax withheld by the company. It is also mentioned that such payments were made by the company through cross cheques, and have been duly declared in the respective income tax returns of the petitioners for the corresponding years. However, such information was again sought by the combined investigation team of NAB during the interrogation, conducted by it on 29.03.2018. The information was thus once again submitted through a similar statement, as an annexure to their letters dated 05.04.2018. Through letters dated 24.04.2016, the NAB sought from the petitioners “details/ bank document of commission received by you against lands provided to M/s. Paragon City (Pvt) Ltd. till date”. In response the petitioners, under cover of their respective letters dated 30.04.2018, submitted to the NAB a statement, being annexure “B” thereto showing the amount of commission received from the years 2010 to 2013, year-wise, the date of such payments, the amounts of income tax withheld, the cheque numbers through which the payments were made, and the name of the bank whereon the cheques were drawn. Though NAB has since thereafter sent C.P. No. 2243-L & 2986-L of 2019 36 numerous call up notices to the petitioners and also interrogated them personally, however, neither was any query made by it regarding the above payments, nor have they objected to or expressed any dissatisfaction regarding the replies / information, submitted by the petitioners. Here it may be relevant also to note that in response to the numerous subsequent call up notices, the petitioners have also furnished to the NAB complete details of their bank accounts, the source of the deposits held therein, and also the income tax returns alongwith the wealth tax statement, not only for the relevant years, but for the other periods as sought by the NAB. The petitioner also duly filled and furnished to the NAB the assets declaration proforma as required by them. However, the NAB neither through any of these notices and/or at the time of the argument, raised any objection regarding the Petitioner’s responses, and/or the material and information submitted by the latter, nor did they point out any discrepancy, inconsistency, inaccuracy, lacuna or inadequacy in the various responses, information, and documents mentioned above. 32. As regards the payments of Rs.58 Million and Rs.39 Million to the petitioner by M/s. Executive Builders towards professional fee and consultancy charges, which C.P. No. 2243-L & 2986-L of 2019 37 services were provided by the two through their respective business concerns namely, M/s. Saadian Associates and M/s. KSR Associates, it may be noted that the petitioners through their various replies have furnished to the NAB all the information, details and documents required by them through their various call up notices in this regard, from time to time. The petitioners thus provided to the NAB the respective agreements between their business concerns/proprietorships, and M/s. Executive Builders, which contains the relevant details and the terms and conditions of the business engagements between those concerns and M/s. Executive Builders. The petitioners have also furnished to the NAB the details of various amounts received by them from M/s. Executive Builders by way of commission and consultancy fee from the years 2013 upto the year 2018 respectively, and the amounts of tax paid thereon. As evident from the record, when asked the petitioners also disclosed the total number of housing units constructed by M/s. Executive Builders in Paragon City, and as to how many of them were marketed/sold by them, and in respect of how many such units they provided consultancy, the Petitioners also provided particulars and details, such as the C.P. No. 2243-L & 2986-L of 2019 38 designated numbers of those units, their respective categories, the buyer names, the amounts of commission and/or consultancy fee received by them, the dates of such payment cheques, the name of the banks on which such cheques were drawn, numbers of units sold each year, number of units in respect whereof consultancy was provided each year, the nature of the consultancy services provided. It was also submitted that the price of the units sold were received directly in the bank accounts of M/s. Executive Builders only. 33. Since the prosecution was left with no relevant fair and justified query and has nothing to object to, they virtually started repeating their earlier queries and making wholly irrelevant and inconsequential questions, through their notice subsequent to the responses received as above. 34. Neither the investigation report nor the Reference specifies any discrepancy or inadequacy in the responses received as above, nor has the learned Additional Prosecutor NAB pointed out any lacuna in the transactions in question. Even otherwise, the transactions/business relationship between the company, M/s. Executive Builders and the petitioners, C.P. No. 2243-L & 2986-L of 2019 39 and the various payments received by the petitioners through their said two concerns, were/are matters purely between private concerns and individuals. Neither has it been alleged that any loss has been suffered by any Government, nor has it been pleaded that any member of the public has in any manner suffered on account of above and/or it was because of such payments that the purported claimants/complainants were allegedly deprived of possession of their promised plots. 35. It is not clear as to what in fact brought the NAB into action in the present case. Whether it were some complaints regarding non-delivery of plots, or was it some investigation, conducted against the accused persons, revealing that the company has denied possession of plots to its customers (in which later case again it is not known as to what occasioned such investigation) that triggered NAB against the petitioners and the other accused in this case, as on the one hand, the reference reveals that it was “in pursuance of complaints received from the members of public at large”, that “an investigation was authorized by the competent authority”, and so also, the chronological summary of the case, submitted in pursuance of our directions, described receipt of complaints “from members of public at large” C.P. No. 2243-L & 2986-L of 2019 40 against the management of Paragon City on 26.11.2017, as the opening event, followed by complaint verification on 12.01.2018 and authorization of enquiry on 06.03.2018 and then by an investigation authorized on 06.12.2018, which summary also reiterated the above, by stating that it was “in pursuance of the complaints received from the public at large that an investigation was authorized on 06.12.2018”. Whereas on the other hand, the investigation report dated 20.05.2019 (pages 14 to 31, CMA 2174/2020) states that it was as a result of investigation conducted against the accused persons that NAB came to know that “members of public at large were looted in a mechanical and systematic fashion, therefore, NAB Lahore published advertisement in daily newspapers and uploaded application forms on website of NAB to facilitate the general public for submission of their claims without visiting the NAB’s office”, and that it was in response to the above notice that 96 complaints/claims were received against the company alleging that the complainants, who paid for the plots in Paragon City were neither given possession of the plots, nor are their amounts being refunded. So it is really not known as to what in fact prompted the NAB into action in this case. Furthermore, there is a serious inconsistency C.P. No. 2243-L & 2986-L of 2019 41 between what is said about those complaints in the reference and that stated in the investigation report, according to which report the complaints did not simply allege denial of possession and/or non-refund of the amounts but, that “the accused persons illegally and arbitrarily cancelled the plots of public and changed their location from front block to tale blocks and misappropriated the same”. Neither were any copies of the many purported claims/complaints, placed, nor were any details thereof submitted before us. It is also not claimed that any of the complainants filed any complaint/claim before any appropriate relevant authority earlier or filed any suit/proceedings, challenging the alleged cancellation and/or non-delivery of possession, and/or change of location and misappropriation. No correspondence by any of the purported complainant/claimant has been referred to. Although as per the investigation report the issue “is lurking since 3 to 13 years”. NAB has, therefore, not been able to demonstrate and explain the real nature of the disputes or the issues that arose between the company and the purported claimants, and has failed to explain, as to whether the conduct of the management of the company in the matter would attract the provisions of C.P. No. 2243-L & 2986-L of 2019 42 NAO, to enable the NAB to even initiate an enquiry in that regard. In any event, as discussed in detail earlier, NAB having miserably failed to establish any control of the petitioners over the management of the company despite all their endeavours, so far, and they having not even claimed that any of the complainants/claimants alleged any role or concern of the petitioners in the alleged non-delivery of possession of their claimed plots and/or non-refund of their money paid for the said plots. It is intriguing as to how the names of the petitioners cropped up in the episode and as to how they came into picture. It is also crucial to note that in none of the so many call up notices sent by NAB to the Petitioners during a long period of March 2018 to October 2018, was there the slightest mention of any allotment of land, or any plot /property in Paragon City to any member of public, though as per the investigation report, the triggering issue and the gist of the allegations is “non- delivery of possession of plots in Paragon City, however, it was not even put to the petitioners that any complaint in this regard has been received by the NAB. 36. The position that emerges from the facts and circumstances of the case narrated and the material placed before us, is that it remains a mystery as to what C.P. No. 2243-L & 2986-L of 2019 43 prompted the NAB into action in this case. It seems that except for what QAB may have allegedly told the NAB after his arrest on 14.11.2018, there was absolutely no word or material attributing to the petitioners any control over the affairs/management of the company. In fact, as noted earlier, the Chairman in his order dated 05.12.2018, whilst tendering pardon to QAB, clearly acknowledged that no evidence against the petitioners was available with the NAB. Yet, the NAB embarked upon a roving inquiry against the Petitioners, as early as in March 2018, call up notice dated 20.03.2018 being the first in the series placed before us, and as noted earlier absolutely, no question was put to the Petitioners in relation to the allotment / sale of any plot/property by the company to its customers. The pattern of the questions put to the Petitioners, their vagueness, frivolity and irrelevance would show that the NAB had no inkling in the matter. NAB could not even build upon information and record provided by the Petitioners in response to their queries, and also did not find any lacuna, fault, inaccuracy, inconsistency or inadequacy in such information. They also could not raise any formidable objection regarding the conduct of the Petitioners in the matter. In none of the call up notices, C.P. No. 2243-L & 2986-L of 2019 44 far from any infraction that could fall within the mischief of Section 9 or of any other provision of NAO, 1999, could the NAB allege any impropriety regarding the conduct or affairs of the petitioners in the matter. In any event, all those allegations which are specific to the Petitioners relate to business/commercial transactions between private individuals/entities, nature and consequence whereof have absolutely no adverse bearing on any public or governmental interest. Even purely civil dispute of financial/commercial nature between the company and private individual, pending before the civil courts, are made the subject matter of the reference, portraying those, as cases of illegal occupation of lands. 37. This country has been achieved through the enormous sacrifices and relentless struggle of our forefathers, with a will, a clear vision, and a conviction for an independent democratic state, “wherein the principle of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed” and “wherein the State shall exercise its powers and authority through the chosen representative of the people”, as a sacred trust, “wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic C.P. No. 2243-L & 2986-L of 2019 45 and political justice, and freedom of thought, expression, belief, faith, worship and association”, “wherein, independence of judiciary shall be fully secured”. “So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity”. The above vision, conviction and commitment find expression in the shape of the preamble to the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”), the constitution, that we achieved through unremitting struggle of the people of this country, after years of the disillusionment and failures, has provided to us a complete scheme and an immaculate and robust mechanism for realizing the above dream and to translate the vision and aspirations of our founding fathers and the toiling millions of this country. 38. Through its Article 4 the Constitution declared that to enjoy the protection of law, and to be treated in accordance with law is the inalienable right of every citizen, and that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. And in terms of Article 5 C.P. No. 2243-L & 2986-L of 2019 46 declared obedience to the Constitution and law to be inviolable obligation of every citizen. Article 9 of the Constitution guarantees that no person shall be deprived of life or liberty save in accordance with law. The dignity of man has been protected as an inviolable right. Equality of all citizens before the law, and their entitlement to equal protection of law has been guaranteed through article 25. 39. The Courts in Pakistan have jealously protected the fundamental rights conferred by the constitution. In the case of Pakistan Broadcasters Association PLD 2016 SC 692, the Court reiterated the oft repeated constitutional principle as follows:- “Undoubtedly no one can be deprived of his fundamental rights. Such rights being incapable of being divested or abridged. The legislative powers conferred on the State functionaries can be exercised only to regulate these rights through reasonable restrictions and that too as may be mandated by law and not otherwise. The authority wielding statutory powers conferred on it must act reasonably (emphasis supplied) and within the scope of the powers so conferred.” 40. In the case of District Bar Association, reported as PLD 2015 SC 401, a bench consisting of the Full Court C.P. No. 2243-L & 2986-L of 2019 47 pronounced that Prominent characteristics, which defined the Constitution and were its Salient Features included Democracy, Federalism, Parliamentary Form of Government blended with the Islamic Provisions, Independence of Judiciary, Fundamental rights, Equality, Justice and Fair Play, Protection and preservation of the rights of minorities, both as equal citizens of Pakistan and as minorities etc. In Watan Party Case, reported as PLD 2011 SC 997 this Court cited with approval, its earlier pronouncement in the case of Eli Lilly Pakistan 2009 SCMR 127 which reads:- "It is the duty and obligation of the State on account of the various provisions of the Constitution to provide the atmosphere based on honesty by providing equal protection of law. Every citizen must be treated equally, dignity of human being life should be maintained, and liberty of life and honour must be guaranteed as envisaged in the Articles 9, 14 and 25 of the “Constitution.” 41. The significance of protecting liberty has also been highlighted by this Court in the case of Federation of Pakistan and others vs. Shaukat Ali Mian PLD 1999 SC 1026 in the following words:- C.P. No. 2243-L & 2986-L of 2019 48 “The perusal of the above quoted Article indicates that every citizen and every other person for the time being in Pakistan is guaranteed as his inalienable right to enjoy the protection of law and to be treated in accordance with law wherever he may be and in particular no action detrimental to the life, liberty, body, reputation or property of any person can be taken except in accordance with law.” 42. The liberty and dignity of man have always remained sacrosanct and have been placed atop the fundamental/human rights pedestal. Islam has conferred upon human beings the highest level of dignity amongst all of Allah’s creation and secured and protected for them complete liberty within the prescribed limits. 43. It was way back in the year 1212 that the Magna Carta impregnably secured the liberty, freedom, property and customs, for the people, and protected them from being banished or ruined, in the following words:- “No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice.”, C.P. No. 2243-L & 2986-L of 2019 49 Whereas, Article (9) (1) of the International Covenant on Civil and Political Rights declared: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”. Similarly, Article 9 of the Universal Declaration of Human Rights provides:- “No one shall be subjected to arbitrary arrest, detention or exile”. 44. The renowned English Philosopher John Locke in his central philosophy believes in a government that provides, what he claims to be basic and natural given rights for its citizens, being the right to life, liberty, and property. 45. Ronald Dworkin has coined the term ‘rights as trumps’ which posits that rights should, generally, trump other interests. While this is not to say that an individual’s fundamental rights may never be curtailed, it means that rights are not merely aspirations that may be trumped at the altar of expediency. Rather, that rights represent the contract between a State and its citizens and that rights may not be curtailed arbitrarily. C.P. No. 2243-L & 2986-L of 2019 50 46. XXIV Amendment to the Constitution of the United States, places a restraint on enforcing any law which may abridge the privileges or immunities of the citizens of that country, or deprive them of life, liberty, or property, without due process of law, or deny to them equality or protection of laws in the following words:- “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person, of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. In the words of an Indian Supreme Court Judge:- “Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society.” Chambers’ Twentieth Century Dictionary defines “liberty” as “Freedom to do as one pleases, the unrestrained employment of natural rights, power of free chance, privileges, exemption, relaxation of restraint, the bounds within which certain privileges are enjoyed, freedom of speech and action beyond ordinary civility…. C.P. No. 2243-L & 2986-L of 2019 51 Dicey in his treatise on Constitutional Law observed that, “Personal liberty, as understood in England, means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification… Eminent English Judge Lord Alfred Denning expounded the concept of liberty in the following words: “By personal freedom I mean freedom of every law abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasion without hindrance from any person… It must be matched, of course, with social security by which I mean the peace and good order of the community in which we live… The concept has been textualized in Siddharam Satlingappa Mhetre AIR 2011 SC 312 as follows- “Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. This is why “liberty” is called the very quintessence of a civilized existence…” 47. Unfortunately, however, even after 72 years since the creation of our country, and despite 47 years since the adoption of the Constitution, we have not been able C.P. No. 2243-L & 2986-L of 2019 52 to realize the spirit and essence of the ideals set out therein. To the contrary, we have even failed to adhere to some of its most basic commands and prescriptions. The people of this country are frequently denied their constitutionally guaranteed rights. Principles of equality, fairness, tolerance and respect for democratic norms are flouted with impunity. Dogmatism, intolerance, nepotism, cronyism, incompetence, regression, deception, false pretence, self-projection, misplaced sense of superiority, different biases, and prejudices, and corruption have seeped into our society and have now inundated it. Efforts, whenever made for the supremacy of the constitution, and the rule of law have been thwarted with full force. The principle of trichotomy of power and the concept of devolution have been trampled with contempt. Arrogance, self-righteousness and apathy are ruling the roost. We have come to this unfortunate pass, in most part, because of the repeated direct unconstitutional interventions, and manipulations by undemocratic forces. Lust of power, desire to capture, and rule, and pursuit of self-aggrandization, have resulted in violation of the prescribed jurisdictional limits and ceding of political space in governance. Aggravating this is the denial of grass root representation of the C.P. No. 2243-L & 2986-L of 2019 53 people in the local government, which again is against our constitutional ethos, and violates the true essence and spirit of democracy. Public welfare and poverty alleviation are at the lowest rung of our priorities. The wide spread suppression of dissent is another anathema to our democracy. An egalitarian order remains a distant dream. ﮯﮭﺗ ﮯﺘﮨ ﺎﭼ ﻮﺟ ﻢﮨ ﺎﻨﮭﮑﯾد ،ۓﺎﭘ ﺎﻧ ﮭﮑﯾد ﻮﺗ ﮏﻠﺗ با 48. The present case is a classic example of trampling fundamental rights, unlawful deprivation of freedom, and liberty and the complete disregard for human dignity as guaranteed by the Constitution. NAB’s conduct throughout this case is a clear manifestation of their utter disregard for law, fair play, equity and propriety. Indeed, curbing loot, plunder and combating corruption is a noble cause. Nonetheless, the means, process and mechanism employed therefor should be within the parameters as prescribed and mandated by the law and not in derogation thereof. 49. As per the preamble of the National Accountability Ordinance, 1999 (“NAO”) the bureau has been set up to eradicate corruption and corrupt practices and hold C.P. No. 2243-L & 2986-L of 2019 54 accountable all those persons, accused of such practices and matters ancillary thereto. 50. Section 22 of NAO confers jurisdiction on the Chairman NAB (“Chairman”), and grants him power to inquire into and investigate any suspected offence which appears to him on reasonable grounds to be an offence under the ordinance, whereas, clause (n) of Section 5 of NAO defines “offence”, as the offence of corruption and corrupt practices and other offences as defined in the said ordinance, including those as specified in the schedule thereto. 51. Section 9 of NAO, through its 12 sub clauses describes various instances of corruption and corrupt practices. 52. Section 17 of NAO, provides that the provisions of the Code of Criminal Procedure, 1898, shall, except those which may be inconsistent with any provision of the NAO, shall mutatis mutandis, apply to the proceedings under the NAO. 53. In terms of Section 18 (c) proceedings under NAO against any person can be initiated where the Chairman or any officer authorized by him, forms an opinion that C.P. No. 2243-L & 2986-L of 2019 55 so is necessary, and where they find it appropriate to initiate proceedings against any person, they shall refer the matter for inquiry or investigation. 54. Section 24 of NAO prescribes that reference submitted to the Court shall contain the substance of the offence alleged to have been committed by the accused. 55. The schedule referred to in Section 9 of NAO through its Item 3 prescribes rigorous imprisonment upto 10 years for an investigator of the NAB for giving false information or fabricating false evidence during inquiry into or investigation of an offence by the NAB. 56. As discussed in detail earlier, the basis on which Chairman NAB decided to proceed in the matter remain unknown. If the purported complaints were the basis, it is not shown as to what exactly was alleged therein, and what information and material was placed before the NAB for it to decide that the nature and conduct of the management of the company fell within the ambit of Section 9 of NAO. Secondly, there was absolutely nothing before the NAB connecting the petitioners with the company so as to hold them responsible for any misconduct, malfeasance and misfeasance of the C.P. No. 2243-L & 2986-L of 2019 56 company, and to prompt NAB to initiate an inquiry or investigation against them. 57. The reference contains five (5) different allegations against the company: the first being of operating the scheme and proceedings with the subject project without permission from the LDA, the second being of obtaining approval from the TMA on the basis of forged documents, the third is of merging state /shaamlat lands into Paragon City, and selling away the same, the fourth is of cheating members of the public at large, and the fifth and the last is of occupying lands of two private individuals. Not a single question regarding any of the above, was put to the petitioners by the NAB, though they interrogated the petitioners for long durations several times, and sent them many call up notices, commencing at least from March 2018 and continuing earliest upto October 2018. 58. The queries raised through the call up notices by the NAB to the petitioners, in relation to the company were only in respect of certain payments that they received from the company and regarding certain land transaction between them and the company. For the sake of clarity, we may observe here that certain queries were also raised by NAB regarding the payment the petitioners C.P. No. 2243-L & 2986-L of 2019 57 received from the Executive builder, whom they dubbed as a proxy of the company. As noted by us earlier, NAB has not been able to show any illegality in the aforesaid transactions and or that the petitioners have dishonestly and unlawfully enriched themselves by way of the same. In any event, as observed earlier, the transactions exclusively being between private individuals/entities and the same have had no adverse bearing on any public or governmental interest, neither was it the cause of the alleged non delivery of plots and or the non-refund of the payment to the purported complainant customers of the company, are wholly irrelevant and inconsequential, and could not provide any cause to the NAB, to initiate any proceeding in that regard. 59. We have already observed that the dispute between the two individuals namely, Shahid Butt and Haji Muhammad Rafiq and the company, which have been portrayed as illegal occupation of their lands by the company, through accused No.1 and the Petitioner/accused No.3, were purely of a civil and commercial nature. These disputes were/are pending before the civil court, also could not have justifiably been made part of the Reference. C.P. No. 2243-L & 2986-L of 2019 58 60. Prima facie there seems no reasonable ground to believe that the petitioners are or have been involved in the commission of any offence triable under the NAO, so that they could have been labelled or treated as “accused” within the meaning of Section 5(a) of NAO. 61. NAB, as yet, has not been able to connect the Petitioners either as members, partners or directors of the company and/or even, for that they promoted, established or operated the same. 62. NAB so far has also not been able to show that the conduct of the Petitioners as has emerged before us in relation to the company constitute any offence within the meaning of Section 9 of NAO. 63. The object, purpose and reason behind the initiation of the purported inquiry and investigation and the arrest of the accused and keeping them incarcerated for a long period of fifteen months, prima facie do not appear to be in consonance with, and/or in conformity with the NAO. 64. The Constitution requires our state to ensure that its citizen and all those living therein, are not deprived of their constitutionally guaranteed rights and that their dignity, honour, liberty, freedom and property, is fully C.P. No. 2243-L & 2986-L of 2019 59 secured and protected. It also commands the state to promote and ensure a just and fair democratic dispensation, as prescribed thereby, without any tampering or perversion. Undoubtedly, preventing and fighting graft and corruption is also an important obligation/function of the state, but unfortunately the manner in which this objective has been pursued, particularly over the political spectrum, is a sad affair. Almost right from our very inception we have had one law after the other, though at times with some gaps, providing for debarring or disqualifying our politician/holder of public offices, and/or putting them on trial. The first in the series was the “Public and Representative Offices (Disqualification) Act, 1949 (PRODA) was passed by the Legislature which became effective from 15th August, 1947. This Act provided for debarring from public life for a suitable period of persons judicially found guilty of misconduct in any public office. It was repealed on 21st September, 1954. On 7th August, 1958 while the country was under the Martial Law, Elective Bodies (Disqualification) Order, 1959 (EBDO) was promulgated which remained enforced only until 31st December, 1960 (EBDO provided for disqualifications of certain categories of persons from being a member or a C.P. No. 2243-L & 2986-L of 2019 60 candidate for the membership of any elective body until 31st December, 1966. On 9th January, 1977, Holders of Representative Offices (Prevention of Misconduct) Act IV of 1976 and Parliament and Provincial Assemblies (Disqualification from Membership) Act V of 1976 were passed which provided for trial of offences of misconduct of holders of public offices. On 13th November, 1977 Holders of Representative Offices (Punishment for Misconduct) Order (President’s Post Proclamation) Order No.16 of 1977 (P.P.P.O. 16) and Parliament and Provincial Assemblies (Disqualification for Membership) Order (President’s Post Proclamation Order 17 of 1977 (P.P.P.O. 17) were promulgated. P.P.P.Os. 16 and 17 of 1977, however, did not repeal Holders of Representative Offices (Prevention of Misconduct) Act, 1976 and Parliament and provincial Assemblies (Disqualification for Membership) Act, 1976 with the result from 13-11- 1977 onwards we had on the Statue Books Act IV of 1976, Act V of 1976, P.P.P.O. 16 of 1977 and P.P.P.O. 17 of 1977, all dealing with punishment for misconduct and disqualification of the holders of public offices. Holders of Representative Offices (Prevention of Misconduct) Act, 1976 and Parliament and Provincial Assemblies (Disqualification for Membership) Act, 1976 were finally C.P. No. 2243-L & 2986-L of 2019 61 repealed by Parliament and Provincial Assemblies (Disqualification for Membership) (Amendment) Act, 1991 which was assented to by the President on 28-4-1991. P.P.P.O. 16 of 1977 was amended through P.P.P.O. 5 of 1978 dated 17-1-1978 and President’s Order 1 of 1981. Similarly, P.P.P.O. 17 was also amended by Ordinance IX of 1990 dated 15-10-1990 and Act VII of 1991 dated 28- 4-1991. 65. On 18th November, 1996, Ehtesab Ordinance CXI of 1996 was promulgated which repealed P.P.P.O 16 and P.P.P.O 17 of 1997, Ordinance CXI was amended by Ordinance CXXIII of 1996, Ordinance VII of 1997 and Ordinance XI of 1997. Ordinance CXI amended as aforesaid was repealed and replaced by Ordinance XX of 1997. Ordinance XX was repealed by Act IX of 1997. Act IX of 1997 was amended through Ordinance II of 1998 on 4th February, 1998 but this Ordinance stood repealed on 3rd June, 1998 as it was not passed by the Parliament.” 66. Rather than doing any good to the country or our bodypolitic and cleansing the fountainheads of governance, these laws and the manner in which they were enforced, caused further degeneration and created chaos, since the same were framed and applied with an oblique motive of arm twisting and pressurizing political C.P. No. 2243-L & 2986-L of 2019 62 opponents into submission, subjugation and compliance, or remove them from the electoral scene at least temporarily. These laws were successfully employed as tools to change political loyalties, for splintering and fracturing political parties. Pygmies were selected, nurtured, promoted, and brought to prominence and power. People with notorious backgrounds and criminal credentials were thrust to rule us in various capacities with predictable results. Similarly, those, who caused death, destruction and mayhem in our society were trained, financed, protected, promoted and eulogized, thus, turning them into Frankensteins. Meanwhile corruption, misconduct and malpractice in governance kept growing at exponential rates and became all pervading. None of the state institutions whichsoever remained free from this morass. 67. The NAO was promulgated by the Military regime of General Pervaiz Musharaf on 16.11.1999, repealing the previously enacted Ehtesab Act, 1997. The NAB Ordinance from its very inception became increasingly controversial, its image has come under cloud and there is a wide spread perception of it being employed as a tool for oppression and victimization of political opponents by those in power. It is frequently alleged that the Bureau is C.P. No. 2243-L & 2986-L of 2019 63 being flagrantly used for political engineering. Discriminatory approach of NAB also is affecting its image and has shaken the faith of the people in its credibility and impartiality. The bureau seems reluctant in proceeding against people on one side of the political divide even in respect of financial scams of massive proportion while those on the other side are being arrested and incarcerated for months and years without providing any sufficient cause even when the law mandates investigations to be concluded expeditiously and trial to be concluded within 30 days. Nonetheless, investigation is often not concluded for months and cases remain pending for years. It is because of lack of professionalism, expertise and sincerity of cause that the conviction rate in NAB cases is abysmally low. The above is certainly not serving the national interest, rather causing irretrievable harm to the country, nation and society in multiple ways. It was in view of the above distressful situation that the former Chief Justice Asif Saeed Khan Khosa, speaking for this Court during the opening ceremony of the Judicial Year 2019-20 observed as follows:- “We as a relevant Organ of the State also feel that the growing perception that the process of C.P. No. 2243-L & 2986-L of 2019 64 accountability being pursued in the country at present is lopsided and is a part of political engineering is a dangerous perception and some remedial steps need to be taken urgently so that the process does not lose credibility. Recovery of stolen wealth of the citizenry is a noble cause and it must be legitimately and legally pursued where it is due but if in the process the constitutional and legal morality of the society and the recognized standards of fairness and impartiality are compromised then retrieval of the lost constitutional and legal morality may pose an even bigger challenge to the society at large in the days to come”. 68. It is in the context of such highhandedness and brazen disregard for human dignity that the Bureau has attracted ignominy and notoriety beyond our frontiers too. In a recent review, the European Commission also highlighted NAB’s partisan conduct and urged the government to give it more autonomy so as to allow it to function independently. The Commission observed that there was a serious deterioration of freedom in Pakistan, thus, raising concerns about the NAB’s role as a tool to muzzle dissent. 69. It is the duty and obligation of the State to ensure that the Constitution reigns supreme and the rule of law C.P. No. 2243-L & 2986-L of 2019 65 is all pervading so as to create an environment conducive to the expression of diverse ideas. The State is obliged to ensure that every citizen is treated equally and that his life, dignity, honour and property is fully secured. 70. This Court in the case of Ismaeel Vs. The State (2010 SCMR 27) observed as follows: “Our Constitution is based on the concept of welfare State wherein the principle of democracy, freedom, equality tolerance and social justice as enunciated by Islam, should fully be observed. The mandate of the Constitution envisages that every person has to obey the Constitution as it demands loyalty and obedience. Constitution is a social binding contract between the State and the people. Every organ of the State should act within its parameters as defined by the Constitution without meddling into the matters of the other organs. Media who acts as a fourth and equally important pillar of the State, needs to highlight the character of the Founder of Pakistan so that people can adopt his teachings to get rid of evils like greed and lust and toil for the welfare of the State and people of Pakistan”. 71. In exercising its power and authority, NAB should not lose sight of the well-entrenched legal principle that no power conferred upon executive or public authority is C.P. No. 2243-L & 2986-L of 2019 66 unfettered. Every executive act has to be founded in law and has to be exercised as prescribed thereby, particularly, where the exercise of such power, tends to intrude into the constitutionally guaranteed rights. This is even more pertinent when such action violates the liberty of a person, or is likely to hurt his honour, and dignity. The bureau should remain mindful of the fact that the power to arrest, as conferred by Section 18 (e) read with Section 24 of the NAO, is always subject to review by the constitutional courts on the ground of fairness, proportionality, reasonableness, and necessity. It hardly needs any emphasis that all powers in a democratic state governed under a Constitution, are to be exercised justly, fairly and for the public good only. No authority or state institution, howsoever mighty can unlawfully curtail the rights guaranteed by the Constitution. 72. Arrest of any person is a grave matter. Capricious exercise of the power to arrest has deleterious consequences, thus highlighting the need to exercise it with care, caution and sensitivity. Arrest of a person has to be justified not only by referring to prima facie evidence and adequate actionable material sufficiently connecting the person with the offence/crime complained C.P. No. 2243-L & 2986-L of 2019 67 of, but also by showing that in the given circumstances, there were no other less intrusive or restrictive means available. The power of arrest should not be deployed as a tool of oppression and harassment. 73. This Court, after exhaustively examining the provisions of Cr.P.C. in the case titled “Muhammad Bashir v. Station House Officer, Okara” [PLD 2007 SC 539] held that arrest of an accused by a police officer would not be justified on the sole ground that an FIR was registered and because the latter was nominated therein. There must be sufficient incriminating material to justify deprivation of liberty. The august Supreme Court has explicitly declared arbitrary exercise of power to arrest as 'abuse of authority'. The above view was recently reaffirmed by a larger Bench of the august Supreme Court in the case titled “Mst. Sughran v. The State” [PLD 2018 SC 595] by observing; “Ordinarily no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer feels satisfied that sufficient justification exists for his arrest and for such justification he is to be guided by the C.P. No. 2243-L & 2986-L of 2019 68 relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934. According to the relevant provisions of the said Code and the Rules a suspect is not to be arrested straightaway or as a matter of course and, unless the situation on the ground so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the allegations levelled against such suspect or regarding his involvement in the crime in issue.” 74. In a judgment of the House of Lords titled “Liversidge v. Anderson” reported as [1941] 3 All E.R 338, Lord Atkin, in the context of an action for false imprisonment, has highlighted the importance of liberty as follows. - “The plaintiff’s right to particulars, however, is based upon a much broader ground, and on a principle which again is one of the pillars of liberty, in that in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act. The only exception is in respect of imprisonment ordered by a judge, who from the nature of his office cannot be sued, and the validity of whose judicial decisions cannot, in such proceedings as the present, be questioned.” C.P. No. 2243-L & 2986-L of 2019 69 75. While dealing with the cases pertaining to the liberty of a person, we should not lose sight of a fundamental principle of criminal jurisprudence that a person is presumed to be innocent until proven guilty. This principle stems from a general rule that burden of proof in a criminal case is on the prosecution to establish the guilt of an accused beyond reasonable doubt. The justification for the above principle is that the outcome a wrongful conviction is far worse than that of a wrongful acquittal. We should also remain mindful of the fact that the public interest in ensuring that no innocent person is incarcerated, subject to humiliation and convicted, greatly overwhelms the public interest in securing conviction of the guilty. Thus, the concept of the presumption of innocence is imperative, not only to protect an accused on trial, but to secure and maintain public confidence in the fairness, impartiality, integrity and security of the criminal justice system. 76. In the case of Rajiv Singh v. The State of Bihar & Another, decided on 16 December, 2015 the Supreme Court of India dilated upon the above theme as follows: - C.P. No. 2243-L & 2986-L of 2019 70 “In his treatise, The Law of Evidence, Professor Ian Dennis while dwelling on the theme of allocation of burden in criminal cases, elaborated on the significance and purport of presumption of innocence and the general rule of the burden of proof. While reiterating the fundamental notion of criminal jurisprudence, that a person is presumed to be innocent until proven guilty and that the burden of proof in a criminal case is on the prosecution to establish the guilt of accused beyond reasonable doubt, the author underlined that the acknowledged justification of such presumption is that the outcome of a wrong conviction is regarded as a significantly worse harm than wrongful acquittal. Viewed from the moral and political perspectives, it has been observed that in liberal states, the rule about the burden of proof has been elevated to the status of fundamental human right encompassing the assurance of liberty, dignity and privacy of the individual and from this standpoint it is essential that the state should justify fully its invasion of the individuals interest by proving that he had committed an offence, thereby abusing the freedom of action accorded to him or her by the liberal state. The significance of such presumption finds insightful expression in the following extract of State vs. Coetzee [1997] 2 L.R.C. 593, South African Constitutional Court C.P. No. 2243-L & 2986-L of 2019 71 in the words of Sachs, J.: There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book. Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug- smuggling, corruption the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in C.P. No. 2243-L & 2986-L of 2019 72 the most trivial of cases. The quintessence of the philosophy embedded in the above extract is that the presumption of innocence serves not only to protect a particular individual on trial but to maintain public confidence in the enduring integrity and security of the legal system.” 77. There is only one fundamental right in the Constitution of 1973, which is unconditional, inviolable and cannot be circumscribed under any circumstances. This is the dignity of man and one of the grave consequences of pre-arrest confinement, is the humiliation and disgrace resulting from such arrest, for not only the accused but also his family and persons attached to him. Arrest causes irreparable harm to a person’s reputation and standing in society, often subjecting him to hate, vitriol, and infamy. In today’s age of a robust print and electronic media, arresting an accused and levelling allegations against him gives rise to a vicious campaign of whispers and murmurs where the accused and his family are subjected to humiliation, embarrassment, and agony. It, thus, irrevocably jeopardises a person’s dignity, subjecting him to physical and psychological repercussions concomitant with life in prison. Often a person in custody loses his job and is C.P. No. 2243-L & 2986-L of 2019 73 also prevented from preparing his defence. The burden of his detention frequently falls heavily on the innocent members of his family. More often than not people do not differentiate between arrest before conviction and that after conviction. This sentiment was also shared by the Indian Supreme Court in the case of Arnesh Kumar v. State of Bihar and another (AIR 2014 SC 2756 at 2758) where it observed that: “Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive. C.P. No. 2243-L & 2986-L of 2019 74 Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation…” 78. The Indian Supreme Court also had the occasion to dilate upon this aspect in Moti Ram and Ors. V. State of Madhya Pradesh (AIR 1978 SC 1594) where it held: C.P. No. 2243-L & 2986-L of 2019 75 “The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family”. 79. In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors (AIR 2011 SC 312 at 330) it was observed as follows: “A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre- conviction stage or post-conviction stage.” 80. While dealing with the question of whether or not bail is to be granted to an accused, it has to be kept in mind that the object of bail is to secure the attendance of the accused at the trial. The object is neither punitive nor preventive. Imprisonment of a person and deprivation of C.P. No. 2243-L & 2986-L of 2019 76 his liberty, cannot be described other than, being a punishment, unless no less restrictive alternative is available to ensure that the accused will stand his trial when called upon to do so. All civilized societies recognise the principle that punishment comes only after conviction, and the presumption of innocence subsist with the accused, till he is handed down punishment after trial. It hardly needs any reiteration that the detention either pre-trial or during trial causes great hardship. 81. In the case of Sanja Chandra v. Central Bureau of Investigation (AIR 2012 SC 830 at 837-838) the Court has dilated upon the issue as follows: “In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at this trail by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention C.P. No. 2243-L & 2986-L of 2019 77 in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, ‘necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.” 82. It hardly needs any mention that the constitutional jurisdiction has been conferred on the High Court to advance the cause of justice and not to frustrate or defeat the intent of law. In the case of National Accountability C.P. No. 2243-L & 2986-L of 2019 78 Bureau through Chairman Vs. Murad Arshad and others (PLD 2019 SC 250), this Court has cited with approval the above as expressed in the case of Hema Misra as follows:- “the Constitution has to be exercised with circumspection and caution as extraordinary jurisdiction is invoked and exercised to advance the cause of justice and not to frustrate it or to defeat the intent of law. The jurisdiction under Article, 199 of the Constitution, 1973 are therefore to be exercised to prevent miscarriage of justice and abuse of NAO, 1999”. 83. As observed in the case of Ismail Vs. The State (2010 SCMR 27), the interest of this country can only be secured and served when the executive and judicial machinery, while performing their functions and exercising their duties adhere to law. The state organs should remain particularly sensitive towards the mandate of the constitution and the prescription of law, when it comes to fundamental rights. Under no circumstances should the courts, thus, condone highhandedness or look the other way as the State deprive citizens of their liberty in derogation of the law and the Constitution. C.P. No. 2243-L & 2986-L of 2019 79 84. In matters where curtailment of liberty is in issue, judges should apply their mind, fully realizing the sensitivity of the matter and should not allow the authorities to treat constitutional guarantees flippantly. It may here be beneficial to refer to the case of Zaigham Ashraf Vs. The State (2016 SCMR 18), where this Court has made the following observation:- “To curtail the liberty of a person is a serious step in law, therefore, the Judges shall apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively however, this exercise shall not to be carried out in vacuum or in a flimsy and casual manner as that will defeat the ends of justice because if the accused charged, is ultimately acquitted at the trial then no reparation or compensation can be awarded to him for the long incarceration, as the provisions of Criminal Procedure Code and the scheme of law on the subject do not provide for such arrangements to repair the loss, caused to an accused person, detaining him in Jail without just cause and reasonable ground.” 85. In the case of Federation of Pakistan Vs. Ibrahim Textile Mills Ltd and others (1992 SCMR 1898), it has been held as under:- C.P. No. 2243-L & 2986-L of 2019 80 “As regards his contention that discretionary relief should not have been granted to the respondents by the High Court, it needs be said that discretion is not desire of the Judge but regulated by law. Discretion comes into play to choose one of the two or more alternatives, all of which are lawful. 1t is not H proper exercise of discretion to refuse relief to a party to which it is entitled under law.” 86. In cases where the question of liberty and dignity of an individual is involved, strict scrutiny of the prosecution’s case is required by the courts, as in the words of John Marshal the great Chief Justice of the US Supreme Court “we should never forget that it is a Constitution we are expounding (McCulloch v. Maryland, 17 U.S. 4 Wheat. 316 (1819))”. 87. In the case of Tariq Bashir Vs. The State (PLD 1995 SC 34), it has been held as under: - “As regards the first category of offences (punishable with death, or imprisonment for life, or with ten years' imprisonment) the provisions of section 497(1) are not punitive in nature. There is no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of 'nail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court, that I there are C.P. No. 2243-L & 2986-L of 2019 81 reasonable grounds to believe that the accused has committed the crime falling in the first category the Court must refuse bail. On the other hand where the accused satisfies the Court that there are not reasonable grounds to believe that he is guilty of such offence, then the Court must release him on' bail. For arriving at the conclusion as to whether or not there are reasonable, grounds to believe that the accused is guilty of offence punishable with death, imprisonment for life or with ten years' imprisonment, the Court will not conduct a preliminary trial/inquiry but will only make tentative assessment, i.e. will look at the material collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the, evidence and circumstances appearing in the case is neither desirable nor permissible at bail stage. So, the Court will not minutely examine the merits of the case or plea of defence at that stage. 88. Courts while dealing with the grant of bail and the justifiable exercise of power of arrest have to maintain a balance between two fundamental but conflicting demands of personal liberty of the accused on one hand and the investigational right of the police on the other hand. Or between Individual rights versus societal interests. This balancing act has been described in the C.P. No. 2243-L & 2986-L of 2019 82 case of Vaman Narain Ghiya v. State of Rajasthan ((2009) 2 SCC 281 at 287) in the following terms: “Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K. Gopalan v. State of Madras)” . 89. In the words of Aharon Barak the constitutional rights of a person can only be curtailed when there exists a proper purpose, a rational connection and necessary C.P. No. 2243-L & 2986-L of 2019 83 means, and further that proper relation between the benefit gained by realizing the proper purpose, and the harm caused to the constitutional right. According to Barak this principle of proportionality is applied to achieve a balance between the benefit gained and the resultant prejudice that is caused to the rights. 90. Thus, any deprivation of liberty or curtailment of rights guaranteed by the constitution has to be adequately justified on the touchstone of the principle of proportionality, unreasonableness and necessity. The limitation must be for proper purpose rational and necessary and the prejudice caused to the constitutional rights thereby must be proportional to the benefit achieved. In the case of ‘R. v. Oakes’ [(1986) 1 S.C.R. 103] the Supreme Court of Canada has elucidated the principle as follows; “To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. The C.P. No. 2243-L & 2986-L of 2019 84 standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the C.P. No. 2243-L & 2986-L of 2019 85 effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". 91. Discretion has been granted to the constitutional courts in order to widen the scope of their power and competence, albeit within the prescribed parameters. The constitutional courts are the guardian of the constitution, and thus required to ensure that the executive refrain from violating the constitutional mandate, and to stop such violation when it occurs. The Court has to review the executive actions and the conduct of the public authorities on the touchstone of fairness, reasonableness and proportionality. They should not hesitate in performing their constitutional duty objectively, particularly, when it comes to the matter of rights that have been guaranteed by the constitution, we should remain mindful of the sensitivity of such issues, as unless the constitutionally guaranteed rights protections and privileges are respected and safeguarded the situation shall inevitably degenerate into chaos and anarchy. People wielding power should not lose sight of the fact that the constitutionally guaranteed rights have C.P. No. 2243-L & 2986-L of 2019 86 been obtained and secured by the people of this country through a social contract in the shape of the constitution. 92. Before parting, it is worth recalling Antonio Gramsci’s exhortation to civil society to be intellectually pessimistic but with a will that is optimistic. Legal protections, however sacrosanct, are inadequate to preserve liberties in a society that values outcomes over due process and is happy to sacrifice procedural safeguards at the altar of expediency. Until we value the ideals of democracy and liberty, we shall forever remain shackled not only deprived of the rights afforded to us by the Constitution but also unable to gain our rightful place in the comity of nations. As Thucydides wisely proclaimed “the strong will continue to do what they can and the weak shall continue to suffer what they must.” Our salvation, thus, lies not in suppressing ideas we disagree with but in demanding freedom of thought, conscience, and expression for those whom we most vociferously disagree with. Until we create a culture of transparency, liberty, civility, and democratic values, our desire for peace and order shall continue to elude us. To borrow from Habib Jalib: C.P. No. 2243-L & 2986-L of 2019 87 ﻮﮨ ﯽﮩﺑ ﻦﻣا روا ﮯﮨر ﻢﻠظ ﻮﮩﮐ ﯽﮨ ﻢﺗ ﮯﮨ ﻦﮑﻤﻣ ﺎﯿﮐ 93. In the end, we may observe that the observations hereinabove are merely tentative in nature and shall have no bearing on the outcome of the reference. Above are the reasons for our short order dated 17.03.2020. Judge Judge Islamabad the 17th March 2020 Approved for reporting

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain CIVIL PETITION NO.2255/2010 Moulvi Iqbal Haider Vs. Federation of Pakistan, thr. M/o Law & Justice etc.) AND Constitution Petition No.14/2013 Lahore High Court Bar Association thr. Its President Vs. General (R) Parvaiz Musharraf and another AND Constitution Petition No.16/2013 Barrister Amjad Malik, Chairman Association of Pakistani Lawyers (England) Vs. General (R) Parvaiz Musharraf AND Constitution Petition No.17/2013 Sheikh Ahsan ud Din, ASC Vs Federation of Pakistan and others AND Constitution Petition No.18/2013 Abdul Hakeem Khan, ASC, former Chairman PBC Vs. General (R) Parvaiz Musharraf, etc. For the petitioner (s) (In CP 2255/2010) Mr. A. K. Dogar, Sr. ASC Syed Zafar Abbas Naqvi, AOR For the petitioner (s) (In Const. P. 14/2013) Mr. Hamid Khan, Sr. ASC For the petitioner (s) (In Const. P. 16/2013) Nemo For the petitioner (s) (In Const. P. 17/2013) Sheikh Ahsanuddin, ASC For the petitioner (s) (In Const. P. 18/2013) Mr. Muhammad Ikram Ch. Sr. ASC Syed Safdar Hussain, AOR CP 2255 of 2010 etc. 2 For the respondent (s) N.R. (In all cases) Date of Hearing : 08.04.2013 ORDER Jawwad S. Khawaja, J. We have before us 5 cases. Civil Petition No. 2255/2010 is a petition which impugns the judgment of the Sindh High Court dated 14.10.2010. It has been filed by one Moulvi Iqbal Haider who was petitioner before the Sindh High Court. His case is that although the Sindh High Court did proceed to hold that “the proclamation of PCO dated 3.11.2007, promulgated by Rtd. General Pervaiz Musharraf clearly shows that … he is the person who is responsible for abrogation and subversion of the Constitution”, the Court chose not to issue any direction to the Federal Government for initiating proceedings under Article 6 read with the provisions of the High Treason (Punishment) Act, 1973 against General Rtd. Pervaiz Musharraf (Respondent No.4). The High Court observed that “it would be proper for the petitioner to approach and make such prayer before the Hon’ble Supreme Court of Pakistan and seek directions in this regard”. 2. Mr. A. K. Dogar, Sr. ASC has contended that in terms of the judgment of the High Court dated 14.10.2010 and in view of the clear findings of this Court recorded in the judgment in the case titled Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), an order needs to be issued directing the initiation of legal proceedings against General Rtd. Pervaiz Musharraf and others. 3. The other 4 petitions have been filed respectively by the Lahore High Court Bar Association (Const. P.14/2013), Barrister Amjad Malik, Chairman Association of Pakistani Lawyers England (Const. P. 16/2013), Sheikh Ahsan-ud-Din Advocate Supreme Court (Const. P. 17/2013) and Abdul Hakeem Khan Advocate Supreme Court, former Vice Chairman Pakistan Bar Council (Const. P.18/2013). These petitions also seek initiation of proceedings inter alios, against General Rtd. Pervaiz Musharraf under Article 6 of the Constitution read with the High Treason (Punishment) Act, 1973 for having committed high treason. In Constitution Petition No. 16 of 2013, the petitioner, who has filed the petition in person, has not appeared. We, however, note that the case was listed through a supplementary cause list issued yesterday i.e. Sunday 7.4.2013. It is also not clear that the CP 2255 of 2010 etc. 3 petitioner, who is resident in the UK, has been given intimation of today’s hearing. Notice to the petitioner in Const. P. 16 of 2013, shall be repeated. 4. In the remaining cases, learned counsel appearing for the petitioners have drawn the attention of the Court to a number of paragraphs from the judgment of a 14-Member Bench of this Court in the case of Sindh High Court Bar Association v. Federation of Pakistan supra. For ease of reference, relevant extracts from these paragraphs are reproduced as under:- “6. On 22.7.2009 a notice was issued to General Pervez Musharraf (Rtd.) on his available address intimating him about the proceedings in this case and 29.7.2009 as the date fixed therein before this Court … The factum of issuance of the afore-referred notice was widely televised through National and International T.V. channels. Also, it was widely published in National and International print media, but, on the date so fixed no one entered appearance. … 56. Each member of the Armed Forces, as per his oath under the Third Schedule to the Constitution in pursuance of Article 244, is bound to bear true faith and allegiance to Pakistan and uphold the Constitution which embodies the will of the people. He is also sworn not to engage himself in any political activities whatsoever … We agree with the contention of the learned counsel that General Pervez Musharraf failed to abide by his oath to preserve, protect and defend the Constitution. The Constitution was framed to continue to be in force at all times. By Article 6, an in-built mechanism was provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever. … 85. In the light of the above discussion, the actions of General Pervez Musharraf dated 3rd November, 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. are held and declared to be unconstitutional, illegal, mala fide and void ab initio. … 100. … that the holding in abeyance of the Constitution and/or making amendments therein by any authority not mentioned in the Constitution otherwise than in accordance with the procedure prescribed in the Constitution itself, is tantamount to mutilating and/or subverting the Constitution … It should be noted that Articles 6 and 237 were framed in the backdrop of the successive abrogation of the Constitutions and CP 2255 of 2010 etc. 4 imposition of martial laws in the country from time to time by the General commanding the Army at his will and whim. 5. Learned counsel for the petitioners have also referred to a resolution passed by the Senate of Pakistan on 23.1.2012. The relevant part of this resolution is as under:- “Therefore, the House resolves that for these amongst other facts, reasons, acts, breaches and grounds, that: a) He [General Rtd. Pervaiz Musharraf] be arrested immediately on arrival in Pakistan; b) That the Federal Government institutes a case under Article 6 of the Constitution against him”. 6. Considering the above and also noting the submissions advanced on behalf of the petitioners pointing to the act of high treason allegedly committed by General Rtd. Pervaiz Musharraf and others, it has been contended before us that it was the bounden duty and obligation of the Federation to take affective legal measures and to initiate a criminal case against General Rtd. Pervaiz Musharraf and others, who had inter alia, subverted the Constitution. It has further been submitted that the Federation rather than initiating action against such persons and instead of acting in accordance with the resolution of the Senate dated 23.1.2012, has inexplicably, accorded treatment to General Rtd. Pervaiz Musharraf, which is unusual and is normally provided to persons who are commonly referred to as VIPs. It was contended that the Federal Government had thus not fulfilled its constitutional obligation. 7. We have heard learned counsel for the above referred petitioners. It is necessary to issue notice to the respondents in these petitions before proceeding further. The office shall ensure service of notice on the respondents for tomorrow i.e. 9.4.2013. The Inspector General of Police, Islamabad shall serve notice on the respondent General Rtd. Pervaiz Musharraf who is statedly within the Islamabad Capital Territory. 8. The Counsel representing the petitioners particularly Mr. A. K. Dogar and Mr. Hamid Khan have submitted that the respondent General Rtd. Pervaiz Musharraf be taken into custody to ensure that he remains available within the country for the purpose of trial under Article 6 of the Constitution read with the provisions of High Treason (Punishment) Act, 1973. We are, however, of the opinion that in the first instance, notice of these petitions be served on the said respondent for tomorrow. The Inspector General of Police, Islamabad CP 2255 of 2010 etc. 5 and, if necessary, the Inspectors General of Police in the Provinces, shall ensure service on the aforesaid respondent. The Secretary, Interior shall also make sure that if the name of the aforesaid respondent General Rtd. Pervaiz Musharraf is not already on the Exit Control List, this shall be done forthwith and a compliance report of this order shall be submitted in Court during the course of the day. The Federation and all its functionaries shall also ensure that the respondent does not move out of the jurisdiction of Pakistan until this order is varied/modified. 9. To come up for hearing tomorrow i.e. 9.4.2013. Judge Judge Islamabad 08.04.2013 A. Rehman Not approved for reporting.

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No. 2280 of 2016 2 ١٥۔٠٥۔١٩٩٥  �  ٰى�دا � � � �اد   س� � � �� � � ل� روا �� �١  � (م��) �� ��١٩٩٤؁  � � � � ا� ��� �ز/دا�� ِ�� ہ�� ��ز � � سا �� �ا � � � ل� ِن�ا� �و�ور �ور١� ادا �  � �ر ہ�� �� رواىر� ِہ� �ادا١٩٩٦ ِہ� ، ؁ ىر�١٩٩٧؁ ىر� ِہ� روا١٩٩٨� ل� ؁ روا � �  � ى�ر �ر� ��� �ارا  �� � ل�ا ۔�د ےد � �� �ارا � روا � ہ�و � �� �� ٢۔ � ل� � � � �� � تد� � ��� ١ � �� � � �ر � � تد� � � � � � �� � � �� �ار �ا� �و� ور ن�رد �� ل�  �ر� � ٢٧۔٠٧۔١٩٩٩  �  ��� � � � و �ادا �ا� �و�ور   �� �ور �� �آ � �ا ہ  � ے� ۔�� � ى�ڈ ٰى�د � ���� � �ر� ہ�آ ہو �ا�ادا � ہر  � جر� ٰى�د � سا � ے� �  � � سا ۔��/�� � �� و � � � � � � �ا�ا ِ�ا� ت�� � �� روا ِ�� ں�ود � � � �و � نا روا ��۔� �د � ء � ر� ى�� � �ا� �� ��  � ہ�و � �د  ا� ف�ور �� �آ � � سا � � ��ا � �ا�رد ى�� �ا روا � �  ف� ��٦�ادا �ور ��  ۔�� � �رد ن� �� � سا ا� � � ہ�و ��  �ا�ا �ا�  �۔ىد � جر� �ا�رد � �� ٣۔ � �� ��ا � �ا� �� �ا � � جرد � ر� �او �ر�٢٨۔٠٢۔٢٠٠٠ � �  �ور �� �آ سا � � � � �اد� � ۔� �� � جر� ٰى�د �  � سا روا ���و  و �� �  �د �ا ���� � �ا� � �۔� � �� �� �/  ف� � �� � سا � �� ا� �� ��ود �� � � �د ں� روا ے� �ا� � �ا� ِ�اد �� �آ � ر�ا � �ر�٠١۔٠٣۔٢٠٠٠ �٣� � � � � سا � �ا� �ود زاے� � � ر� ى� �� �� � � � �� �ر ہر�� � � �ا� روا � � �ا� � �ا� ِ�اد د�و� روا �ا  �ا�رد �ر� � ىرا�٢٧۔٠٧۔١٩٩٩ ت�او � � �� � � � خ� � �� ت�� � �ر� �� � �� � �ا�ا ِ�ا� ۔�� � � د� � تد� روا٢٠۔٠٣۔٢٠٠٠� � ى � � ل�  �� ��١ � � � ِ�� � �ر� ہر� � � � �ا�رد با� �۔ C.P. No. 2280 of 2016 3 ٤۔  ٰى�د � سا � � د� � ��� �� ��� سا � �� � �ا�ا ِ�ا� � � � ى�� � �ا � �� ف� � � � جر�٢٩/٢٠١٣�ر�٢٨۔٠٣۔٢٠٠٠ � �ا ِ�ا� �  �ر� � � �اد٢٢۔٠٦۔٢٠٠٥۔� � جر� � ت� �� �ر� �� ف� � � �ا� � � �ا�د-D  ٢٠٠٦/١٠١٧  �ر� � � �اد ن�،� ن� �� ِ�ا�٠٣۔٠٦۔٢٠١٥ � � � ۔� � جر� � ٥۔  �  �ا � � �� ���ر� �� ِ�ا� �ا� � ��١١۔٠٨۔٢٠٠٥ � � � �اد � �ا � � �� ِ�ا��ا�ا �� سد �  ت�� روا � �او� ہر�ود �ر�٢٩۔٠٩۔٢٠٠٥   �� �� �اد  �ر� � روا � � �او � � ٢٠١١۔٠٦۔٣٠ ٹر� � سا �� � �اد ہر�ود � � ں� � ٹر� � ��ا � �  �ر� � � � �٢٠٠٦۔١٢۔٠١ � �� �� ِ��  � �� ود � روا �� �ا�رد � �� ى� ا�ا � �� ِ�ا� � � ۔ء  ر� �ا�رد � � �� � � � �و �� ��  �ا �ا� � ن� ،� ن� ،ر�� �� ِ�ا� ں� روا � � � �د جا�ا � �� �ا� � ں�ود � � � جر� � ت�� � � �ا و ٰى�د � � د ۔� ٦۔  � ہ�� ِ� ��  �� � ى�ڈ �� � �ا�ا � �آ � � تار�ا ى�� روا  � �� � �� �ا� ں�� � ن�� ا� � جر� ٰى�د � سا � د� � ��� � � �ا  ِ�ا� � � � �آ � ل� ِتر� سا �� ١٨٥)� �ذ٣(� �  � ت� � نا � � � �ا�  � ں�ا� ں� � � � �� �ا � �  � ، �ر � ��  �� �� � � �� � � � � دز� � ��� � �� �� ل�ا � � تار�ا ى��ا�ع  �  ۔� �� ��ا � ٧۔ ِ� �د � ن�� � � ہ��٢٢ ِ�ا� � روا ا� ِ�ا� � �  �� ���  � ��� ور � � � ل�ا ہ� � � �  ى�ڈ ِل� �ا� ٰى�د � � ن�� سا � � �  � ہ��  �ا� � ى��ا�� �آ � تار�ا  �� �و � � � � ہ � جر� � �� � ۔:� �� � جرد � �ذ �� � � � )أ ( � � �ا ہ�� � ىراد �ذ �و �� �اد ٰى�د � � سا �� �  ��  � ے�� �� � � �� ار� ض� ��� روا ��ا �ا ��  C.P. 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No. 2280 of 2016 5 )خ (  � � تار�ا ى��ا� ِ�ا� ِ�ا� �ا � � � در ٰى�د � � سا � � ڑآ � ے�� �� � � � � سا� � � ��ا ہ�� �� ��ر  � ۔� ں� � � �� � �� � ،�د ��د � ے�� �و روا ��� � � ت � سا �ا� � � � �و ل� � � � ور �   � �� ب�ا � تار�ا �  � ِف� � � ہ�� �ا � �� � � � �� � � �� ِف� و ن��  � � � � � �� � ے�� � � �� ے� � ى�ڈ � � ل�ا � �� � ق� ��� د� �ا� �و � تر� � �  � ��� تا�ا ۔ � �� ى� ٨۔ ا� �� ِ�ا� روا � � ب�را � ��� � ر� رد ��� روا �� ��� � �� �  �� � �� �آ � � ن� ى�� �ا � سا � � �ا� ما�ا ِدر� � �ا�ا�٦��  �ور   �ا� � �ا� ��  ���� � � � �� � �ا  روا � �د � سا � سا � � � روا � ن� � �� � سا � � �و �� � سا � ا�   � ن� �ا � � �� ف� �ا ل� ��� �د م�ا � ر�ا �ا� �� � � � ��� تد� ِن�� �ور زا ں� � � �� ِ� � �  � � �� � در � � تد� �� ط� روا �د� ��� ف� � � � �� �� ٔ��  �  � دا� �ا �� ،ر�رد � تد� �� � � سا � �� � ��� � د��۔ ٩۔ � � �� �اد � �� ِ�ا� � � �ا� � �� ہو� � ں��� �� ��� �� �ر  � �� � � ىروآ � � ت�ا�ا نُا �� ��ا ت�ا�ا �� سد � �ا ز� � � �  � � �ا� � � ں� � ب�را � ں��� � � �و� � ��ا ہر� روا � � �� � � سا � � �ر� د �� ا� ، ��ا � روا � ���  ۔� �� �اد� ��� ١٠۔  ں��� � ��� �� � � �ر را�� � �� ِ�ا� � � �ا�ا ِ�ا� � �  راد� � روا��� ر� ف� � �� �� � ں� � � ا� ِ�ا�۔ر ��زا�  و١٣ ن� ن� � م� نا�د، ١٤ نا�د ن�)١٩٩٩�� ��ر �� ِ� ��� � ِ�ا�١٣٦٢(  � � � � �� سا � � � ن� � ر� �او ل�ا� �ا �و �� �اد ٰى�د � ن �ر �� �ذ � � �ا� ِ�اد روا � �ا�ا ِ�ا� � � � � �� ى�ڈ � ٰى�د �� �د � � � سا � نا C.P. No. 2280 of 2016 6  � تر� � ا� � جرد � �� �� ہ�� � � � � �ا� ِ�اد �ر �� � �ر� ہر� و �� �اد ٰى�د � راد ى�ڈ � � سا �ا� � � تار�ا ى��ا� ر� رد � ��� � �ا  �ا � � � �ا �ا� ت�ر� � ہ�� � ف� � � �د را� �� � ا� ِ�ا� � �  ت�� و ت�او � ��� � �ر �� ں� �� د� درا � سا روا ں� � � �� �   �� تار�ا ى��ا� � �ر � ِ�ز � � ن�� �او �� ��� � � سا �� �� ل�ا  � �� د� � تر�� ��� � �� ر� ردزا�ا ے�، � ہر� � ��� � ع � سا �د ِتر� �رز � ف�ا ۔� �� �� �اد� فدا� � ل�ا ��� � و ��� � تار�ا ى��ا� �   سا � �� � ہو � � �� ض� � � �ا�ا ِ�ا� � ت�� � ع � سا � � ں��ا  سا � �� � �ذ � �� �ا روا � ہ�� ر� � ہ�� � ع��  �� ار� ہر� ِ�ر� ر�ا � �  ۔ ے� رد� ١١۔ �� � �ا� � �� �� ا� �� ��  �� ِ�ا� � � � ا� ا� � ں��� � نا روا � � �ا � � روا �� � � ہ�� �رد � � ں��ا � � ن�� � ر��  � �� �ا� ں� � ت� ��� � � � ��ز ى��ا� � � � � � رد� �� � �ا� ت � � تار�ا� �� � � ں��ا �رز � ن�  � ف�ا و ل� � ��� �� � � �  �ا� ا� �ا�� � �� روا � �� � �� � نا ا� �آ �  � ىزرو ف� � ں��ا ۔� �� � جر� �� در �ا ِتز�ا ِل� ١٢۔ ۔� �� � ھ� � �ا� � � �  ،د�آ م�ا١٨  �ا٢٠١٦� (ر� � � ��ا) �و �ا

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{'id': 'C.P.L.A.2280_2015.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN Civil Petitions No.2297 & 2298 of 2018 (Against the judgment dated 02.05.2018 passed by the Peshawar High Court, Peshawar in Writ Petitions No. 1712-P and 1585-P of 2018). Tanveer Musharraf. Petitioner (in CP.2297/18) Shaukat Ali. Petitioner (in CP.2298/18) versus Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar and others. …Respondent(s) (in both cases) For the petitioner(s): Mr. Muhammad Younis Thaheem, ASC. (in both cases) For the respondent(s): Barrister Qasim Wadood, Addl. A.G. K.P. Mr. Taimur Khattak, D.S. Judicial. Mr. Nur Rehman, Establishment Officer, K.P. (in both cases) Date of hearing: 27.02.2019. O R D E R IJAZ UL AHSAN, J.- Through this single order, we propose to decide Civil Petition No.2297 of 2018 and Civil Petition No.2298 of 2018, which are directed against the same judgment and common questions of law and fact are involved in both petitions. 2. Tanvir Musharraf, the petitioner in Civil Petition No.2297 of 2018 is the son of Jahangir Khan, who was serving as Superintendent in the Establishment Admin Department, Civil Secretariat, Khyber Pakhtunkhwa, Civil Petitions No.2297 & 2298 of 2018 2 Peshawar. He was allotted a government accommodation bearing House No.E-5, Civil Colony, Warsak Road, Peshawar. On his retirement from service, the said accommodation was allotted to his son (the petitioner, Tanvir Musharraf) under retired son quota because at the relevant time he was serving as Superintendent in KP Public Service Commission. 3. Shaukat Ali, the petitioner in Civil Petition No.2298 of 2018 is the son of Mian Sahib Jan, who was serving as Secretary/Member, KP Public Service Commission. He was allotted House No.B-5, Civil Colony, Warsak Road, Peshawar. On his retirement, the aforesaid house was allotted to the petitioner, who was working as Social Security Officer in the Employees Social Security Institution, Peshawar. 4. Pursuant to a judgment of the Peshawar High Court, Peshawar, dated 20.09.2017, passed in Writ Petition No.1503-P of 2011, out of turn/unauthorized allotments were cancelled and notices were issued to the allottees. Similar notices were issued to the petitioners calling upon them to vacate the government accommodations under their occupation. They filed representations before the competent authority. The same were not decided. Consequently, they approached the Peshawar High Court in its constitutional jurisdiction. Their writ petitions were dismissed, vide impugned judgment dated 02.05.2018. Hence, these petitions. Civil Petitions No.2297 & 2298 of 2018 3 5. The learned counsel for the petitioners has argued that the High Court did not comprehend the real controversy and misinterpreted the provisions of Khyber Pakhtunkhwa Buildings (Management, Control and Allotment) Act, 2018 (“the Act”) and rules framed thereunder. He further maintained that allotments made under the previous law had specifically been saved under Section 16 of the Act and Rule 37(2) framed thereunder. However, this aspect of the matter was ignored by the High Court. It is further maintained that there has been an illegal exercise of jurisdiction by the High Court which has erred in law in holding that the impugned notices for cancellation and vacation of accommodations occupied by the petitioners was just and legal. 6. The learned Additional Advocate General, Khyber Pakhtunkhwa, has defended the impugned judgment and argued that this is not a fit case for grant of leave to appeal. 7. We have heard the learned counsel for the petitioners as well as the learned Law Officer and have gone through the record. We have at the very outset noticed that under the provisions of the Act, government accommodation can only be allotted to public office holders. Section 2(n) of the Act defines the “public office holders” as follows:- “2(n).- “public office holder means” (i) a civil servant, appointed under the Khyber Pakhtunkhwa, Civil Servants Act, 1973 (Khyber Pakhtunkhwa Act No. XVIII of 1973), including such civil servants of the Federal Government, posted and working at Peshawar under the Government, as may be prescribed; Civil Petitions No.2297 & 2298 of 2018 4 (ii) a Provincial Minister, an Advisor and Special Assistant to the Chief Minister; (iii) Judges of the Peshawar High Court including its employees; and iv) employees of the Provincial Assembly of the Khyber Pakhtunkhwa”. 8. We have specifically asked the learned counsel for the petitioners to show us that the petitioners meet the eligibility criteria of being “public office holders” as per definition given in the Act. It may be noted that the petitioner in Civil Petition No.2297 of 2018 is an employee of KP Public Service Commission while the petitioner in Civil Petition No.2298 is an employee of Employees Social Security Institution. The learned counsel for the petitioners has not seriously contested the fact that the said persons are not civil servants having not been appointed under KP Civil Servants Act, 1973 nor did they fall in the category of Civil Servants of the Federal Government posted and working in Peshawar, under the Government, as provided in Section 2(n) of the Act. 9. It is clear and obvious to us that notwithstanding the definition or status of “civil servant” given or conferred upon any employee of the Federal or Provincial Government under any law or judgment, the benefit of the provision of the Act is available only to a special class of civil servants namely those who have been appointed under KP Civil Servants Act, 1973 and Civil Servants of the Federal Government posted and working in Peshawar under the Government. In order to avail the benefit of the Act, an employee must be a civil Civil Petitions No.2297 & 2298 of 2018 5 servant as defined in the Act. The petitioners do not fulfill this criterion. The above being the situation, neither of the petitioners is governed by the Act nor can they claim benefit of the same. Even otherwise, the High Court has held that the petitioner in Civil Petition No.2298 of 2018 had also been allotted a house out of turn which is an additional ground supporting the stance of the respondent-Government that the said petitioner is not entitled for allotment of government accommodation. 10. We find that there is no error either of fact or law in the impugned judgment of the High Court. The learned counsel for the petitioners has also not been able to point out any legal, procedural or jurisdictional error, defect or flaw in the impugned judgment that may persuade us to interfere therein in exercise of our jurisdiction under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973. 11. For reasons recorded above, we do not find any merit in these petitions. The same are accordingly dismissed. Leave to appeal is refused. JUDGE JUDGE JUDGE ISLAMABAD. 27.02.2019 Not Approved For Reporting ZR/* Civil Petitions No.2297 & 2298 of 2018 6

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 2327 OF 2016 (On appeal against the judgment dated 03.06.2016 passed by the Islamabad High Court, Islamabad in FAO No. 18/2016) Haider Abbas … Petitioner VERSUS FPSC through its Chairman …Respondent For the Petitioner: In person For the Respondent: Mr. Sohail Mehmood, DAG Mr. Usman Hayat Gondal, Director Legal Mr. Mumtaz Shoukat, A.D. FPSC Date of Hearing: 24.01.2017 JUDGMENT FAISAL ARAB, J.- In the CSS Competitive Examination- 2011, final result of which was announced in the year 2012, the petitioner who appeared from Gilgit-Baltistan-FATA region was placed at Serial No. 249 on the overall merit list. Though his first priority was to seek recommendation against a vacancy in Foreign Service, however, based on his placement on merit quota of Gilgit-Baltistan- FATA region, he could only be recommended for Inland Revenue Service, which was second on his priority list. He was accordingly notified by the Establishment Division on 10.07.2012. He then joined service without any reservation. Then a vacancy occurred in Foreign Service on a seat that was allocated to one Ms. Mahin Habib in the Competitive Examination-2011 against women’s quota of Gilgit- Baltistan-FATA region but she failed to join. This resulted in cancellation of her appointment vide Ministry of Foreign Affairs’ letter dated 22.04.2014. This vacancy was then re-advertised by Federal Public Service Commission to be filled from the successful women candidates of Competitive Examination-2013 that were held in the CIVIL PETITION NO. 2327 OF 2016 2 year 2014. This vacancy was thus allocated to one Ms. Saima Jameel. As this vacancy was originally advertised for Competitive Examination- 2011, in which the petitioner appeared, being a successful candidate from the same region and the Foreign Service was a group of his first priority, he thought that it was his right to seek appointment on this vacancy. The petitioner thus made a representation on 09.11.2015 to the Federal Public Service Commission for his reallocation from Inland Revenue Service to Foreign Service. 2. The petitioner’s claim for his reallocation to Foreign Service was based on another ground as well. He maintained that a vacancy in Foreign Service Group on merit quota for Gilgit-Baltistan- FATA region was wrongly created in the Competitive Examinations- 2010 as the ‘fraction’ available on merit quota for such examination was not sufficient enough to create vacancy and this ‘fraction’ ought to have been carried forward to the next year’s competitive examinations in which the petitioner appeared i.e. Competitive Examinations-2011 and had this been done, a vacancy on merit quota in Foreign Service would have been available on which, on account of his placement on merit he would have been recommended. 3. The Federal Public Service Commission, however, rejected the representation of the petitioner on both the grounds. It maintained that the seat claimed by the petitioner was reserved on women’s quota and not on merit quota of Foreign Service group and when it was not taken by Ms. Mahin Habib, it could be filled only by a female candidate, which was accordingly done when Ms. Saima Jameel was recommended. As to the petitioner’s other ground that vacancy in Foreign Service Group on merit quota was wrongly created in Competitive Examination-2010 on account of lack of requisite ‘fraction’ and such ‘fraction’ for that year ought to have been carried forward for creating vacancy in Competitive Examination-2011, the Federal Public Commission maintained that after allocation of the ‘fraction’ for Competitive Examination-2010, the same was sufficient to create one vacancy on merit quota in Foreign Service group for the Gilgit- Baltistan-FATA region. Thus the Commission came to the conclusion that no right of the petitioner was infringed in the selection process. The petitioner challenged the decision of the Commission before the CIVIL PETITION NO. 2327 OF 2016 3 High Court in appeal which was dismissed. Feeling aggrieved, this petition has been filed. 4. To present his case, the petitioner appeared in person and urged the same grounds which he urged before the Federal Public Service Commission as well as before the High Court. As the petitioner was conscious of the fact that the vacancy in question has already been filled with the selection of Ms. Saima Jameel, he sought creation of a supernumerary vacancy so that he could be accommodated. For the creation of supernumerary post, he cited a precedent of an officer whose services were transferred by the Commission from Railway Service to Inland Revenue Service in pursuance of a judgment of the Federal Service Tribunal, Karachi inspite of the fact that there was no vacancy. We also heard the counsel and representative of the Commission and examined the record. 5. The stand of the Federal Public Service Commission on the first ground was that where a seat allocated to a particular quota is not taken and falls vacant after the training has commenced then it is carried forward to the next competitive examination as a vacancy available against the same quota. This is exactly what was done in the present case as is evident from the Statement of allocation of vacancies for Competitive Examinations-2011. This statement shows that in each group vacancies are to be created on merit quota, women’s quota and minorities’ quota, depending upon the sufficiency of the ‘fraction’ available for each of the three categories. Where a vacancy is created for a particular quota of the group, if the candidate to whom it is allocated fails to avail it then it is to be filled by a candidate of the same category and cannot be allocated to a candidate who is eligible from any of the remaining two categories. In the present case Mahin Habib was recommended on women’s quota in Foreign Service group but she failed to join service and thus her seat became vacant whereas the petitioner was a candidate on merit quota in Foreign Service group, thus was not entitled to raise claim against a vacancy occurring in women’s quota. The petitioner’s representation to the Commission that the seat that fell vacant from his region on account of failure of Ms. Mahin Habib to join service ought to have been given to him, therefore, does not appear to be legally tenable. CIVIL PETITION NO. 2327 OF 2016 4 6. As to the other ground of the petitioner that vacancy on merit quota in Foreign Service group in the Competitive Examination- 2010 was wrongly created, we have examined the Statement prepared for allocation of vacancies for Competitive Examination-2010. In terms of this statement, against 4% quota reserved under recruitment policy for Gilgit-Baltistan-FATA region, eight fresh vacancies for all the groups were created against the total ‘fraction’ of 8.40 allocated to this region for Competitive Examination-2010. This ‘fraction’ was further distributed whereby the ‘fraction’ that was allocated to merit quota was 7.14, to women’s quota it was 0.84 and to minorities quota it was 0.42. Thus out of eight fresh vacancies created for all the groups of the region, seven were allocated to merit quota, based on available ‘fraction’ of 7.14 and the remaining one vacancy was allocated to women’s quota based on available ‘fraction’ of 0.84. The seven vacancies created for merit quota were further distributed according to the formula whereby one vacancy on merit quota fell to the share of Foreign Service Group, which was accordingly allocated to the successful candidate who appeared in Competitive Examination-2010. Thus the vacancy on merit quota for Foreign Service Group created for Competitive Examination-2010 stood filled. The formula that was applied appears to be in consonance with the recruitment policy and the rules for competitive examinations as is evident from the two statements pertaining to allocation of vacancies for the Competitive Examinations of 2010 and 2011 that are at pages 50 and 51 of the case file. The petitioner’s stand that there was no justification to create vacancy on merit quota in Foreign Service Group for Competitive Examination-2010 and the ‘fraction’ ought to have been treated as unutilized and carried forward to Competitive Examination-2011 in which examinations the petitioner qualified, was not based on any lawful justification. 7. Apart from the fact that the petitioner has no case on merits, his representation before the Federal Public Service Commission in the first place was also barred by time as it was belatedly made in the year 2015. CIVIL PETITION NO. 2327 OF 2016 5 8. In view of the above, petitioner’s representation was rightly rejected by the Federal Service Commission. This petition is therefore dismissed and leave is refused. JUDGE JUDGE JUDGE Islamabad, the 24th of January, 2017 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAJJAD ALl SHAH MR. JUSTICE MUNIB AKHTAR Civil Petition No.23384 & 2258-L of 2017 Against judgment dated 22.06.20 17 of Lahore High Court, Lahore, passed in Civil Revision No.2937 of 2014. Province of Punjab through DO(R) Sheikhupura, etc Javed Akbar & another VERSUS Javed Akbar & others Petitioners (in CPl233B.L/27) Petitioners ft. Cp2258•L117) Respondentsfi Province of Punjab through DO(R) Respondents c2258-V!7I Sheikhupura, etc For the Petitioner(s): Mr. Qasim Ali Chauhan, Addl.AG, Pb (in CP# 2338-LI 17) Syed M. Kaleem A. Khurshid, Sr.ASC (in CP44 2258-LI 17) For the Respondent(s) Date of Hearing: Mr. Qasim Ali Chauhan, Addl.AG, Pb (in CP92258-L/17) Syed M. Kaleem A. Khurshid, Sr.ASC (in cP#2338-L/1 7) 19.11.202 1 ORDER IJAZ UL AHSAN, J-. Through this common judgment, we propose to decide CPLA No.2338-L of 2017 (filed by Province of Punjab through District Officer (Revenue), Sheikhupura and others) and CPLA No.2258-L of 2017 (filed by Javed Akbar and another), both of which arise out of a judgment of the Lahore High Court, Lahore dated 22.06.20 17 whereby a Civil Revision bearing I a. tt Wa.2338L 2258L .f2017 2 No.2937 of 2014 filed by the Province of Punjab was disposed of with certain directions. 2. For ease of reference, the Province of Punjab will be described as the petitioner and Javed Akbar and others will be referred to as the Respondents. 3. Briefly stated the facts necessary for disposal of these petitions are that the Respondents instituted a suit for declaration alongwith permanent injunction against the petitioners on the ground that they were owners in possession of the suit land which is situated at Lahore-Sheikhupura Road. It was alleged that front of the land of the Respondents is on Lahore- Sheikhupura Road and the land in question is of a commercial nature. The Respondents wanted to construct a market on the land in question and for the said purpose they had applied for issuance of an NOC before the competent authorities. The petitioners had started construction of Lahore-Faisalabad two ways road and intended to erect pillars and construct a wall in front of the land of the Respondents. Such wall, if constructed will not only block the view and exposure of the land of the Respondents but also cause hindrance in approaching the main road. It was claimed that if the petitioners were allowed to raise construction, the land of the Respondents would become valueless. The petitioners II 'ci.PuS.tNa233&L&22581o(2Oi7 3 contested the suit by filing written statement wherein it was stated that the land was owned by the Provincial Government which was acquired from the predecessors of the Respondents who had raised no objection at any stage. Therefore, the Respondents had no locus stanch to me the suit. The Trial Court dismissed the suit vide judgment and decree dated 10.12.2011. However, the appeal filed by the Respondents against the said judgment and decree was allowed, vide judgment and decree dated 15.04.2014. The revision petition filed by the petitioners was disposed of with a direction that the petitioners shall provide a passage of 201t to the Respondents excluding the passage of Rajbah for transportation and exposure. The petitioners are aggrieved of such direction. The Respondents in their CPLA have challenged the entire judgment of the High Court. 4. The learned Additional Advocate General, Punjab submits that the land on which pillars are being erected belongs to the Provincial Government and it was acquired by the Government for the purpose of dualization of Lahore - Sheikhupura Road and construction of a mechanical workshop which has since been constructed. The predecessors of the Respondents being dissatisfied with the assessment of the price made c 0 2338-L & .12017 by the Land Acquisition Collector initiated proceedings under Section 18 of the Land Acquisition Act, 1894 which went upto this Court and the matter was finalized and at no stage was any other relief claimed or sought. When the Respondents purchased the land in question, they were fully aware of its location and access and cannot now be heard to assert that the acquired land cannot be used for the purposes that it was acquired because it will reduce the commercial value of the property. He further maintains that the impression sought to be created by the Respondents is that the land abuts the Highway or is very close to it which is factually incorrect as is evident from the aerial view of the area, real time photographs of which have been placed on record alongwith other relevant information and data through CMA No.3773W of 2018. He therefore maintains that the learned High Court erred in law and exceeded its jurisdiction by issuing a direction to the petitioners to provide a 20ft passage to the Respondents excluding the passage of Rajbah for access to the land of the Respondents. He further points out that there is already a passage available and other modes of access to the land of the Respondents and in fact the Respondents wish to construct a commercial plaza! market on the land and to obstruct the petitioners in fulfilling the purpose for which the land was acquired by the Government. I 1rpqNa23SL&5-LOf2O17 5 5. The learned counsel for the Respondents on the other hand has argued that in case the petitioners undertake construction according to their proposed plan, the exposure and frontage of the land of the Respondents will be closed and the Respondents would have no access to the main road despite the fact that the land is commercial in nature. He maintains that the petitioners may be directed to provide a passage like the passage granted to petrol pumps situated on main road. He further maintains that the Appellate Court had correctly appraised the evidence and rightly decreed the suit of the Respondents. 6. We have heard the learned Additional Advocate General, Punjab appearing for the petitioners as well as the learned counsel for the Respondents and gone through the record with theft assistance. There is no denial of the fact that the land whereupon the petitioners are constructing pillars and erecting a wall is owned by the Provincial Government having acquired the same from the predecessors of the Respondents. Such predecessors had challenged the assessment of price made by the Land Acquisition Collector upto this Court and the matter stood concluded. It is significant to note that at no stage was any other relief sought. The Respondents were aware of the modes of access to their • ciL!7 Pe1ja. M233&L & 2258-L ot2017 6 land which have not in any manner been blocked by the petitioners. There is also no denial of the fact that the land on which the Provincial Government proposes to erect pillars and / or construct a wall belongs to the Provincial Government and was specifically acquired for the dualization of Lahore - Sheikhupura Road and providing ancillary services including a mechanical workshop. Just by reason of fact that the Respondents have decided to construct a commercial building/plaza/market on their land does not create any additional rights in their favour which may have been asserted in the specific facts and circumstances of this case. 7. It appears from the record that before the lower fora a stance was taken by the Respondents that there was apparently a passage from their land to the main road passing through the land acquired by the petitioners which was allegedly being blocked. Ex.P/2 and Ex.P/3 are Aks Shajrah Parcha of the land in issue. Perusal of the same reveals that the land of the petitioners abuts the road which is not disputed. The revenue documents do not show any passage passing through the land of the petitioners to the land of the Respondents. The Respondents never produced any document or evidence to show that any such passage 0 I WFSU N23384 &2258-L.12017 7 ever existed. The Respondents also never produced any document to show that any such passage existed or was kept intact at the time of acquisition of land by the petitioners. Further, no evidence was produced showing that any objection was taken at any stage with reference to the passage. Therefore, the existence of any passage claimed by the Respondents was never established. Further, no easement right was ever claimed by the Respondents in the contents of the plaint. Under the law, the Courts can issue declarations relating to existing rights and cannot create fresh/new rights in favour of the either party. 8. The learned counsel for the Respondents has laid much emphasis on the blockage of view of any construction that may be undertaken on the land of the Respondents in future. We find that the land in question is agricultural in nature and no commercial building/ shopping plaza or offices, etc exist on the same. When no such commercial activity is being undertaken on the land of the Respondents, there is no ground for them to raise an objection relating to blockage of view of the same. Further, we are not convinced that in the facts and circumstances of the case, the owner of the land abutting the road can be stopped from utilizing it in a manner for which it was specifically acquired and how L S QiJ&1ion No 23384 22o* otAsul and under what law can a Court carve out a passage in the land of another person specially when no right of easement is claimed or asserted. The Respondents in our view failed to discharge the onus of proving the fact that the passage of the Respondents' land was being closed by raising pillars and a wall on the land acquired by the petitioners and that such construction was being illegally done and with malafides to block access to the land of the Respondents. 9. Further, we have carefully examined the real time photographs of the area and other related documents filed through CMA No.3773-L of 2018 and find that the land of the Respondents is at a considerable distance from the main road, the Highway Mechanical Workshop already exists on the side of the road and by no definition of the term does the land of the Respondents abuts the road. There is a substantial distance between the land of the Respondents and the boundary of the land of the petitioners where pillars have been installed and a boundary wall is being constructed. Further, there is a passage besides the canal through which the land of the Respondents can be accessed. Consequent on the claim that such passage belongs to the Irrigation Department which may not allow such passage to be used, we have specifically asked the I • aclPnsnN2338-L&22S84il2O27 9 learned counsel for the Respondents if any such permission has been sought or denied. He has submitted that according to his instructions no such permission has been sought. We therefore find that the learned High Court misread the material available on record and assumed not only that the land belonging to the petitioners abutted the road but that no access to such land was available. Such conclusion is not supported either by the record or the photographs which have been placed on record and examined by us in an enlarged form in Court while hearing this matter. 10. Therefore, we are of the view that the learned High Court exceeded its jurisdiction in issuing a direction that the petitioners shall provide a 20ft passage to the Respondents excluding the passage of Rajbah for transportation and exposure to the main road. Such a direction is neither supported by law nor does it fall within the jurisdiction of the High Court as a revisional Court. As such, we find that the impugned judgment of the High Court dated 22.06.20 17 to the extent of the direction in question is not sustainable and is accordingly set aside. Consequently, CPLA No.2338-L of 2017 is converted into an appeal and allowed. 11. As a result, for the same reasons as enumerated above, CPLA No.2258-L of 2017 is found to i QL.1 t1,? N,, MS-1 & 2258-1 .r2017 10 be without merit. It is appeal is refused. ISLAMABAD. 19 Y N' Approved 112021 For Re rting'

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{'id': 'C.P.L.A.2338-L_2017.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Gulzar Ahmed Civil Petitions No.240 & 241 K of 2013 [on appeal against the order dated 03.05.2013, passed by the High Court of Sindh, Karachi, in Constitution Petitions No.D-1644 & D-1721 of 2013] Sadiq Ali Memon Son Of Late Abdul Hameed, Resident Of Mohallah Islampur, Ward No.3, Union Council No.2, Thatta. Petitioner(s) VERSUS Returning Officer, NA-237, Thatta-I & others Respondent(s) For the Petitioner (in both cases) : Mr. Rasheed A. Razvi, Sr. ASC Mr. Khalid Javed Khan, ASC For Respondent No.4 (in CP#240-K/13) : Peer Tariq Ahmed, Advocate, in person For Respondent No.4 (in CP#241-K/13) : Mr. Faisal Kamal, ASC For Respondents No.1-3 : Proforma Respondents Date of Hearing : 23.05.2013 ORDER GULZAR AHMED, J.—These two Civil Petitions for leave to appeal have been filed against a common order dated 03.05.2013 passed by a learned 3 Member Bench of the High Court of Sindh at Karachi, by which the two Constitution Petitions (C.Ps.No.D- 1644 & D-1721 of 2013) were disposed of setting aside the order dated 13.04.2013 passed by the Election Tribunal and C.Ps.No.240 & 241 K of 2013.doc - 2 - consequently maintaining the order dated 06.04.2013 of the Returning Officer rejecting the nomination papers of the petitioner. 2. Brief facts of the matter are that the petitioner has submitted nomination papers for contesting General Election 2013 as a candidate from NA-237 Thatta-I. The respondent Peer Tariq Ahmed filed objection on the nomination form contending that the petitioner at the time of contesting previous election to the seat of Provincial Assembly Sindh PS-84, Thatta-I, has filed declaration/affidavit and suppressed the fact of his being dual national viz the nationality of Canada and thus he cannot be said to be a sadiq, ameen and righteous person and is disqualified to contest the election under Article 62/63 of the Constitution. The learned Returning Officer noted that the petitioner has filed a declaration while contesting election for the seat of PS-84, Thatta-I, to the effect that he fulfils qualification under Article 62 and was not disqualified under Article 63 of the Constitution and on examining the record of Provincial Election Commissioner, Sindh, found that petitioner is holding dual citizenship and on his asking from the petitioner’s counsel, the counsel admitted that at the time of contesting previous election for the seat of PS-84, Thatta-I, the petitioner has made a declaration in the said Provincial Election despite he being a foreign citizen of Canada. The Returning Officer came to the conclusion that the case of the C.Ps.No.240 & 241 K of 2013.doc - 3 - petitioner is covered by disqualification under Article 63(1)(c) of the Constitution and further concluded that he is neither honest nor a righteous persons and is hit by Article 62(f) of the Constitution and thus his form for candidature was rejected. The learned Election Tribunal while considering the Election appeal of the petitioner altogether ignored the finding of Returning Officer in respect of the petitioner earlier contesting the election of PS- 84, Thatta-I, and making a false declaration with regard to holding of dual nationality by him at that time but confined itself to the fact that the petitioner has submitted an application for cancellation of his citizenship on 24.09.2012 and that the Canadian authorities vide letter dated 09.01.2013 have communicated the petitioner that he has ceased to be a Canadian national w.e.f.11.12.2012 and since the petitioner has ceased to be the Canadian national his nomination papers ought to have been accepted and the Returning Officer was directed to accept nomination papers of the petitioner. This order of the Election Tribunal was challenged by Peer Tariq Ahmed so also by Abdul Wahid Brohi, by two separate Constitution Petitions respectively D-1644 of 2013 and D-1721 of 2013 filed in the High Court of Sindh at Karachi. It seems that Constitution Petition No.D- 1644/2013 was taken up by the High Court on 18.04.2013 and on the same day, an order was passed by which the said petition was dismissed. In this order the High Court has observed that C.Ps.No.240 & 241 K of 2013.doc - 4 - respondent No.4 has submitted that the petitioner was elected to Sindh Assembly while he was holding dual nationality but failed to demonstrate that petitioner ever made a declaration to the effect that he did not hold dual nationality at the relevant time and respondent No.4 has even failed to mention the date on which such declaration, if fact, was filed by the petitioner. It seems that a review application was filed by respondent No.4 before the High Court. The said review application along with Constitution Petition No.D-1721/2013 came up for hearing on 03.05.2013, when after hearing the learned counsel for the parties the Court passed an order on the same date whereby the review application was allowed and the order dated 18.04.2013 passed in C.P.No.D- 1644/2013 was recalled and both the petitions were disposed of by setting aside the order of the Election Tribunal. The High Court also found as an admitted fact that at the time of contesting the election of PS-84, Thatta-I, the petitioner has made a false declaration and committed perjury by categorically mis-stating on Oath that he did not suffer from any disqualification. Hence these petitions for leave to appeal. 3. Mr. Rasheed A. Razvi, learned Sr. ASC has argued the matter on behalf of the petitioner in both the petitions and has contended that the provisions of Article 62 (1) (f) of the Constitution, is not self executory and that there has to be a declaration of the Court of law holding that the petitioner is not C.Ps.No.240 & 241 K of 2013.doc - 5 - sagacious, righteous, non-profligate, honest and ameen and there being no such declaration the petitioner’s nomination papers could not have been rejected. In this respect, the learned counsel has relied upon the case of Dr. Mobashir Hassan & others v. Federation of Pakistan & others (PLD 2010 Supreme Court 265). The respondent Peer Tariq Ahmed who has appeared in person supported the impugned order while Mr. Faisal Kamal, learned ASC appearing for respondent No.4 in C.P.No.241/2013 while supporting the impugned order has also contended that the runner up of the election be declared to be a successful candidate. 4. We have considered the submission of the learned counsel and have gone through the record. 5. In the present case, admittedly the petitioner has while filing nomination papers for contesting By-Election of PS-84, Thatta-I, in 2010, filed a declaration to the effect that he fulfils qualification specified in Article 62 of the Constitution and is not subject to any disqualification specified in Article 63 of the Constitution. This declaration was made by the petitioner despite the fact that he was holding dual nationality i.e. of Pakistan and also of Canada and in terms of Article 63 (1) (c) of the Constitution on acquiring the citizenship of a foreign state, he stood disqualified from being elected or chosen as a Member of Majlis-e-Shoora or the Provincial Assembly. Reference in this C.Ps.No.240 & 241 K of 2013.doc - 6 - regard is made to the case of Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law & others (PLD 2012 Supreme Court 1089), wherein this Court has observed as follows:- “The issue, whether a person holding citizenship of a foreign state is qualified to contest the election or not, had come for consideration before the Lahore High Court, in the case of Umar Ahmad Ghumman v. Government of Pakistan and others (PLD 2002 Lahore 521), wherein a learned Judge of this Court, Hon’ble Mr. Justice Tassaduq Hussain Jillani, as a Judge of the Lahore High Court, held that :-- “38. The contention of the petitioner’s learned counsel was that the petitioner is qualified to contest the general election for the membership of the Parliament in terms of Article 62 of the Constitution which pertains to qualifications for a member of the Parliament. According to learned counsel for the petitioner, in absence of any bar for a dual national prescribed in Article 62 of the Constitution, petitioner is qualified to contest the elections and that the disqualification enumerated in Article 63(1)(c) of the Constitution comes into force only when a person has been elected as Member of the Parliament. 39. The above interpretation of the Constitutional provisions is a rather over simplification and would lead to anomalous results. Article 63(1)(c) of the Constitution explicitly mandates that “a person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State”. Thus the disqualification comes into play the moment a person becomes a candidate or seeks election. This Court has declared petitioner to be a citizen of Pakistan but every citizen of a State is not allowed C.Ps.No.240 & 241 K of 2013.doc - 7 - to contest the election. The qualifications and disqualifications have been enumerated in the Constitution and by the law of the land. Since the petitioner has admittedly acquired citizenship of a foreign country, he is hit by the afore-referred provision and cannot contest elections unless, of course, he removes this disqualification in terms of rule 19 of the Pakistan Citizenship Rules, 1952”. 6. The matter regarding making of a false declaration by a candidate contesting the election for National Assembly or the Provincial Assembly in respect of education qualification came to be considered by this Court in the case reported as Malik Iqbal Ahmad Langrial v. Jamshed Alam & others (PLD 2013 Supreme Court 179), wherein the Court has observed as follows:- “Learned counsel for the appellant has vehemently argued that prior to 18th Constitutional Amendment, in terms of Article 62(1)(f) of the Constitution, the Court was not empowered to declare any person to be non- sagacious, not righteous or honest or an ameen, as such the observations of the Election Tribunal that the appellant was not only to contest the election in the year 2008, but was also not righteous or honest or an ameen person, was sustainable. In this regard it is to be noted that at the time of filing of nomination papers to contest the election in the year 2002, the appellant produced fake and forged education certificates and the Election Tribunal had declared him to be a impostor vide judgment dated 26.12.2002. It is to be noted that Article 62(1)(f), as it stood prior to 18th Constitutional Amendment, provides that a person shall not be qualified to elected or chosen as a Member of Majlis-e-Shoora (Parliament) unless he is sagacious, righteous, non-profligate, honest and ameen. It is clear from the plain reading of the said Article that there is no restriction upon the Court/Tribunal to declare any person to be not sagacious, righteous or ameen. Admittedly the appellant used fake documents not only in C.Ps.No.240 & 241 K of 2013.doc - 8 - the year 2002 but also in the year 2008 and also made false declaration making him liable to criminal action under certain provisions of PPC. In the case of Muddasar Qayyum Nahra v. Ch. Bilal Ijaz (2011 SCMR 80) this Court had upheld the findings of Election Tribunal, Punjab whereby it was held that a person who indulges into using unfair means in procuring his educational qualifications does not deserve to claim to be an honest, righteous or Ameen person so that he be assigned the high responsibilities of performing national functions of running the affairs of the country. The spirit with which the words sagacious, righteous, non profligate, honest and Ameen have been used by the Constitution of Islamic Republic of Pakistan, 1973, for the eligibility of the candidates contesting the election of Members National or Provincial Assembly cannot be allowed to be frustrated if persons who secure their educational documents through unfair means and are found guilty of such a condemnable act by the competent authority are allowed to be given entry into the doors of National or Provincial Assemblies of our country. The respondent (therein) is thus not worthy of credence and cannot be allowed to be entrusted with State responsibilities of Law Making; to be in-charge of the National Exchequer or be eligible to represent the people of Pakistan”. In our view, the test of declaration of sagacious, righteous, non- profligate, honest and ameen as laid down in the above cited case in respect of educational qualification can equally be applied to the case of holding of dual nationality with the same result. 7. In the case reported as Imtiaz Ahmed Lali v. Ghulam Muhammad Lali (PLD 2007 Supreme Court 369), this Court has held that disqualification once earned by a candidate, in view of the provisions of the Constitution and law, cannot be removed by a flux of time. Keeping in view above state of law, it becomes C.Ps.No.240 & 241 K of 2013.doc - 9 - apparent that while contesting the election for the Provincial Assembly PS-84, Thatta-I, the petitioner has filed a declaration, which on its face was a false and untrue declaration which will bring into application the provision of Article 62 (1) (f) of the Constitution that he is not a sagacious, righteous, non-profligate, honest and ameen. This being admitted position on the record which fact was also admitted by the learned counsel for the petitioner during the course of hearing. 8. It was argued by the learned counsel for the petitioner that the impugned order having been passed by the High Court, the petitioner applied for its suspension on the ground that the petitioner proposes to challenge the impugned order before this Court and the High Court vide order dated 09.05.2013 suspended the operation of the impugned order till 16.05.2013 and the petitioner having contested the election on 11.05.2013 has obtained highest number of votes from his constituency and by dismissing this petition it will literally amount to de-seating the petitioner. We are afraid that this submission has no force for that the petitioner was suffering from disqualification from entering into election process and this was so held by the High Court in the impugned order and it was only on the request of the petitioner that such an order was suspended for the period upto 16.05.2013. This eventuality will not make either the impugned C.Ps.No.240 & 241 K of 2013.doc - 10 - order of the High Court redundant or the disqualification suffered by the petitioner would be legitimized. 9. Thus we hold that the petitioner was not qualified to contest the General Election of 2013 and that his contesting of election from NA-237, Thatta-I, is of no consequence and the same are set-aside. Mr. Faisal Kamal, learned counsel for respondent No.4, in C.P.No.241-K/2013 has contended that in the wake of election of petitioner being set-aside, the runner up candidate namely Syed Riaz Hussain Shah Sheerazi be declared as a successful candidate. We are afraid that we cannot pass such declaration and that in any event it seems that the Election Commission of Pakistan will have to hold fresh election of NA-237, Thatta-I, and it is directed accordingly. These petitions were dismissed by the following short order:- “For reasons to be recorded later, the listed petitions are dismissed with all consequences with cost of Rs.50,000/- in each case, which shall be paid to Peer Tariq Ahmed, the objector. The cost shall be deposited with the Registrar of this Court within three days from where the same shall be withdrawn by the objector against the valid receipt”. 10. Above are the reasons for the aforesaid short order. CJ. Islamabad J. 23.05.2013 *Hashmi* J. Approved for reporting

{'id': 'C.P.L.A.240-K_2013.pdf', 'url': ''}

{'id': 'C.P.L.A.240-K_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE AMIR HANI MUSLIM CIVIL PETITION NO. 2408-L OF 2009 (On appeal from the order dated 27.10.2009 passed by the Lahore High Court, Lahore in ICA No. 884/2009) Wukala Mahaz Barai Tahafaz Dastoor … Petitioner VERSUS Federation of Pakistan and another … Respondents For the Petitioner: Mr. Sarfraz Ahmed Gorsi, in person For the Respondents: N.R. Date of Hearing: 04.09.2013 ORDER TASSADUQ HUSSAIN JILLANI, J.- Leave is sought against the order dated 27.10.2009 vide which petitioner’s Intra Court Appeal against the order of the learned Single Judge in Chamber was dismissed and the order of the learned Single Judge in chamber was upheld. Vide the latter order the learned High Court had dismissed petitioner’s Constitution petition, wherein following prayers were made:- “(iii) Respondent Federation be directed to command the Armed Forces of Pakistan to defend Pakistan against the external aggression currently carried out by the American Forces under NATO cover which are in occupation of Afghanistan. (iv) An authoritative declaration be made that USA is an Enemy State and for taking all measures provided by the domestic law such as expulsion of its diplomatic personnel and seizure of assets. CP 2408-L/2009 2 (v) If Nuclear Arsenal is found to be incapable of protecting Pakistan and instead poses a threat to its survival, respondent Federation may be directed either to sell it in international market to the highest bidder or to place it in safe-custody of Iran.” 2. A bare reading of the afore-quoted prayers would indicate that the issues raised in the Constitution petition and the prayer made are relatable to matters of foreign policy, defence and security of the country. Such issues are neither justiceable nor they fall within the judicial domain for interference under Article 199 of the Constitution of Islamic Republic of Pakistan. Any such interference by the courts would be violative of one of the foundational principles of the Constitution, which envisages a trichotomy of powers between the Legislature, Executive and Judiciary. That being so, we do not find the concurrent orders of the learned High Court to be exceptionable, warranting interference. The petition lacking in merit is accordingly dismissed and leave refused. JUDGE JUDGE Islamabad, the 4th of September, 2013 Approved For Reporting Khurram

{'id': 'C.P.L.A.2408-L_2009.pdf', 'url': ''}

{'id': 'C.P.L.A.2408-L_2009.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mushir Alam Mr. Justice Umar Ata Bandial Civil Petition No.2411 of 2014 Against the order dated 28.10.2014 Passed by Punjab Service Tribunal, Lahore in Appeal No.3093 of 2014 Muhammad Akram Petitioner(s) VERSUS DCO, Rahim Yar Khan & others Respondent(s) For the Petitioner(s): Mr. Muhammad Bashir Khan, ASC For Respondent(s): Raja Muhammad Arif, Addl. AG Muhammad Akram, DDEO Date of Hearing: 17.10.2016 ORDER Mushir Alam, J-. Muhammad Akram Petitioner Ex-Junior Clerk in the office of the AEO (Women) Markaz Bagh-o-Bahar, Tehsil Khanpur, District Rahimyarkhan was proceeded departmentally on account of extravagant malpractice and prolonged absence from duty w.e.f. 10.10.2013 and after due proceedings major penalty of dismissal from service under section 4(b)(vi) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2009 (PEEDA Act, 2006) was imposed by the Competent Authority/DEO (Education) Rahimyarkhan, vide order dated 04.07.2014 w.e.f. 10.10.2013. 2. Petitioner instead of filing departmental appeal before appellate authority as provided under section 16 of the PEEDA Act, 2006, approached the learned High Court in Writ Petition No.5412 of 2014/BWP. The Petition was heard and on 16.07.2014 following order was passed:- “As per request of the learned counsel for the petitioner, the instant writ petition alongwith all its annexures be sent to respondent No.1/District Coordination Officer, Rahimyarkhan, who shall treat it as departmental appeal of the present Civil Petition No.2411 of 2014 2 petitioner and decide the same on its own merits after hearing the present petitioner within a period of one month from the date of production of attested copy of this order by the present petitioner.” 3. Consequently, the writ petition sent to the DCO, Rahimyarkhan, and the appellate authority, to “treat it as departmental appeal” and “to decide the same on its own merits after hearing the petitioner within a period of one month”. The writ Petition converted into Departmental Appeal, was dismissed on merits, at the same time it was observed “that no departmental appeal under section 16 of PEEDA Act, 2006 has ever been filed by the Petitioner”, vide order dated 5.9.2014, which order was maintained through impugned judgment dated 28.10.14 by the Punjab Service Tribunal (PST). 4. Learned counsel for the petitioner, admitted that indeed appeal is provided against the order of departmental authority in terms of section 16 of the PEEDA Act, 2006, however, he under mistaken belief filed Writ Petition within 30 days from the date of the impugned order of his dismissal from service. It was argued that he approached the wrong forum with promptitude and within the period of limitation, the Writ Petition, filed by him was ordered to be treated as departmental appeal and sent to the Appellate Authority, which was not decided by the Appellate Authority and so also by the PST in accordance with law and he was non suited on technicalities. 5. Learned counsel for the respondents vehemently opposed the averments made by the learned counsel for the petitioner. According to him, the departmental appeal was decided on merits as well as on the point of limitation as no appeal was filed before the competent authority/DCO concerned within 30 days from the date of his dismissal from service, which admittedly was not done, therefore the Appellate authority had not Appeal Civil Petition No.2411 of 2014 3 before it. It was urged that no exception to the impugned order of the DCO Rahimyarkhan, as maintained by the PST could be taken. 6. Heard the arguments and perused the record. Departmental Appeal against the dismissal from service order is provided under section 16 of the PEEDA, 2006 before the designated Appellate Authority, which in instant case admittedly is the DCO Rahimyarkhan. We have examined the impugned Order dated 5.9.2014, passed by the Appellate Authority on merits with an observation that no Appeal was filed under the PEEDA Act, 2006, as already noted in the narrative above. Learned PST without adverting to merits of the case, dismissed the Appeal before it on the ground of limitation only. 7. The Courts are sanctuaries of justice, and in exercise of authority to do ex debito justitiae, that is to say remedy a wrong and to suppress a mischief to which a litigant is entitled. No fetters or bar could be placed on the High Court and or this court to convert and treat one type of proceeding into another type into another and proceed to decide the matter either itself provided it has jurisdiction over the lis before it in exercise of another jurisdiction vested in the very court or may remit the lis to the competent authority/forum or court for decision on merits. Courts have been treating and or converting appeal into revisions and vice versa and Constitution Petitions into appeal or revision and vice versa. Even time consumed pursuing remedy before a wrong forum in appropriate cases could always be condoned (see Shamsul Haq and others v. Mst. Ghoti and 8 others (1991 SCMR 1135). 8. In a case cited as Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 Supreme Court 539), eligibility for consideration of promotion; was successfully challenged in writ jurisdiction of the High Court. On appeal, this Court held that such question is amenable to the Civil Petition No.2411 of 2014 4 Jurisdiction of learned Service Tribunal, therefore, writ is not maintainable, impugned judgment passed by the learned Sindh High Court in exercise of writ jurisdiction was set aside. In Paragraph 16 of the judgment supra this court ordered to treat the Writ Petition, as Service Appeal pending before it which will be decided by the Service Tribunal, after notice to the parties concerned in accordance with law. In similar circumstances in a judgment recently reported as Province of Sindh and another v. Muhammad Ilyas and others (2016 SCMR 189) dismissal from service order was challenged before the learned Sindh High Court through Constitution Petition. The Constitutional Petition was treated by the High Court as service appeal and sent to the Service Tribunal; which was decided by the Service Tribunal on merit and this Court declined leave in the matter. Similar course was followed by the learned Division Bench of Peshawar High Court in a case reported as Engineer Musharaf Shah v. Government of Khyber Pakhtunkhwa and 2 others (2015 PLC (C.S) 215). 9. As noted above the DCO Rahimyarkhan, decided the Writ Petition No. 5412 of 2014 treating it as Departmental Appeal on merits as ordered by the Bahawalpur Bench of the Lahore High Court, but at the same time held “that no departmental appeal under section 16 of PEEDA Act, 2006 has ever been filed by the Petitioner”, which observation under given facts and circumstances was uncalled for. Apparently it is last mentioned observation of the Departmental Appellate Authority, which influenced the PST to dismiss the Service Appeal as barred by time. Once the Writ Petition, which was filed within the period of limitation as provided for the departmental appeal, was treated and remitted by the High Court as Departmental Appeal, that too when the limitation by than had not ran out as noted above. Learned PST, had fallen in to error to dismiss the Appeal before it on the ground of limitation alone, without adverting to the merits of the case as were attended by the DCO Rahimyarkhan. As noted above date of filing Civil Petition No.2411 of 2014 5 of the writ petition within time should have been reckoned as date of Departmental Appeal and ought to have been treated as Departmental Appeal for all practical purposes as ordered by the High Court. 10. The DCO Rahimyarkhan/Appellate Authority, as noted above decided the Departmental Appeal on merits, as regard observation made in the order dated 5.9.2014 by him “that no departmental appeal under section 16 of PEEDA Act, 2006 has ever been filed by the Petitioner” in view of above discussion, is not in accordance with law to such an extent it cannot be approved. We refrain from commenting on merits of the case, which was not adverted to by the PST, through impugned Decision dated 28.10.2014, which is set aside, Service Appeal No.3093 of 2014, shall be deemed to be pending and be decided on merits after hearing all the parties concerned as expeditiously as possible. 11. In view of the foregoing, Petition is converted into appeal and is allowed in terms setout above. Judge Judge ISLAMABAD, THE 17th October, 2016 Syed Farhan Ali Approved for Reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Amin-ud-Din Khan Civil Petition No.2420 of 2015 (Against the judgment dated 24.06.2015 passed by the Peshawar High Court Peshawar in W.P. No.2052/2008) Ikram Ullah Khan Yousafzai, Excise & Taxation Officer, Peshawar and others …Petitioner(s) Versus Dr. Rizwan Ullah & others …Respondent(s) For the Petitioner(s): Syed Hammad Ali Shah, ASC For Respondent Nos.1-2: Mr. Abdul Samad Khan, Sr.ASC Muhammad Arif, SI Date of Hearing: 10.02.2022. ORDER Qazi Muhammad Amin Ahmed, J.:- Ikram Ullah Khan Yousafzai, Sahibzada Daud Jan and Syed Naveed Jamal, petitioners herein, were, respectively, posted as Excise & Taxation Officer, Assistant Excise & Taxation Officer and Inspector Excise & Taxation at Peshawar. Dr. Rizwan Ullah, respondent, a medical officer, is an assessee of property tax relating to 132 shops located within the remit of Excise & Taxation Office Peshawar, allegedly in default; the assessed amount was Rs.182,365/- seemingly till the assessment year 2008 and it was for the recovery of said amount that the petitioners while executing a non-bailable warrant of arrest purportedly issued by the competent authority took him in custody on 16.6.2008 at 10:30 a.m. while he was present at Services Hospital. It is alleged that the respondent was not in default and he asked the raiding party to allow him an opportunity to clarify his Civil Petition No.2420 of 2015 -2- position, however, he was meted out a treatment rude and uncalled for whereafter forcibly shifted to the Excise & Taxation Office; he was kept in wrongful confinement till 5:00 p.m. when some advocates got him released. It is in this backdrop that the respondent approached Station House Officer Bhana Marree Peshawar for registration of a criminal case against the excise officials and upon refusal filed a petition under section 22-A of the Code of Criminal Procedure, 1898, declined by a Justice of Peace vide order dated 10.11.2008; a learned Judge-in-Chamber of the Peshawar High Court Peshawar vide impugned order dated 24.6.2015 directed registration of a criminal case, vires whereof, are being assailed through the present petition. The case came up for hearing on 14.10.2015 when after issuance of notice, the apprehended arrest of the officials was ordered to be held in abeyance followed by order dated 6.11.2015 maintaining “a meantime status quo”. 2. Learned counsel for the petitioners contends that there was no occasion for the learned High Court to issue the impugned direction inasmuch as the State functionaries tasked with the collection of public revenue were executing a command of law issued by the competent authority and as such respondent’s arrest was an action taken under due process of law, admittedly interrupted by some lawyers through gross interference therewith. It is next argued that execution of warrant was in pursuance of an order within the contemplation of section 78 of the Pakistan Penal Code, 1860 and as such was covered by the statutory immunity under general exceptions enumerated Chapter-IV thereof; it is next argued that till date the respondent has not paid a single penny and, thus, interference by this Court would be most called for both in order to ensure realization of defaulted amount as well as restoration of bureaucratic independence and efficiency. The learned counsel for the respondent while defending the impugned direction argued that the petitioners with intentions, sinister and oblique, in gross abuse of official authority, hounded the respondent, practitioner of a most noble profession, while he was performing his official duties and, thus, committed a series of cognizable offences that statutorily required registration of a criminal case inasmuch as no one is above Civil Petition No.2420 of 2015 -3- the law and the Constitution guarantees dignity of man; he has vehemently denied any default in payment of property tax. 3. Heard. Record perused. 4. State authority is a sacred trust; it vests in its functionaries to accomplish purposes designated by law and no doubt while exercising such authority within remit thereof, the functionaries must act in a manner most benign with a degree of restraint, expedient to avoid transgression. At the same time, a reasonable freedom for the functionaries is most essential to effectively perform the duties they are tasked with. Any obstruction with the performance of State business is interference with the writ thereof and cannot be countenanced without grievously undermining its authority. Independence is not sole prerogative or attribute of any particular limb of the State as within the defined limits of law, each department, must be sovereign to effectively ensure its functionality so as to achieve statutory purpose, there being no sword of demolces hanging over the head. It is even more important for those who are assigned with the responsibility of enforcement of law or for collection of State revenue and, thus, while there must be an unblinking judicial vigil over alleged transgressions, the Court must simultaneously give effect to statutory presumption attached to official acts as contemplated by Article 129 (e) of the Qanun-i-Shahdat Order, 1984 as well as Article 150 of the Constitution of the Islamic Republic of Pakistan, 1973. Diametrically different positions, notwithstanding, what is evident on the record is issuance of multiple notices for the recovery of outstanding assessment of property tax, predating the incident; a warrant issued by an Assistant Collector 1st Class, though disputed as fake is, nonetheless, mainstay of the petitioners’ case who in their official capacity were tasked to collect the assessed amount and, thus, prima facie, within the bounds of law to execute the impugned warrant; their rowdy behavior and inappropriate selection of time and venue for the execution of the warrant as alleged by the respondent though despicable, nonetheless, by itself does not expose them to criminal consequences. There is nothing on the record to view the purported non-bailable warrant as a fake instrument; similarly, it is not open for the respondent to unilaterally dispute the vires of impugned assessment, reportedly Civil Petition No.2420 of 2015 -4- stalled till date. We are also at loss to understand under what authority of law, the rescuing team that included some lawyers took away the respondent from custody apparently sanctioned by law, a criminal offence in itself. These are the issues that hinged upon factual controversies and as such could not have been attended in exercise of Constitutional jurisdiction in the face of multiple alternate statutory remedies available to the respondent. For the foregoing reasons, the petition is converted into appeal and allowed; impugned direction/order dated 24.06.2015 is set aside, however, the respondent is certainly at liberty to dispute the vires of impugned assessment before the competent forum in accordance with law as well as to avail alternate remedy of private complaint to be attended on its own merits, if so advised. Judge Judge Judge Islamabad, the 10th February, 2022 Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITION NO.2482 OF 2020 (On appeal against order dated 09.09.2020 passed by the Lahore High Court, Lahore in Writ Petition No.39841 of 2020.) Federation of Pakistan through the Secretary, Ministry of Energy (Power Division), Islamabad and others … Petitioners Versus Shafiq ul Hassan and others … Respondents For the Petitioners : Mr. Aamir Rehman, Addl. AG Pak. For the Respondents : Mr. Shohaib Shaheen, ASC. Syed Khawar Ameer Bokhari, ASC. Mr. Ahmed Nawaz Ch., AOR. Date of Hearing : 02.10.2020 ORDER Umar Ata Bandial, J. The learned Additional Attorney General has challenged an interim order dated 09.09.2020 passed in writ petition filed by the respondent No.1, a temporary stopgap appointee to the post of CEO, FESCO whereby his transfer order dated 28.08.2020 has been suspended. It appears this was done without obtaining the response of the Federal Government or the concerned authorities namely, FESCO and PEPCO. The said order also admitted the writ petition by the respondent No.1 to regular hearing. The first ground is the violation of FESCO’s transfer policy. FESCO is a limited company and does not have any statutory rules governing the terms and conditions of service of its Civil Petition No.2482/2020 -:2:- employees. The learned Additional Attorney General accordingly states that the writ petition is not maintainable as the said transfer policy is non-statutory in character. The second ground noted in the impugned order is that respondent No.2, Federal Secretary, Ministry of Energy (Power) Division was incompetent to pass the order dated 28.08.2020. It is submitted by the Additional Attorney General that the FESCO is a wholly owned company of the Federal Government. That under sections 187 and 190(2) of the Companies Act, 2017 the Federal Government has power to remove the appointed Chief Executive of a company. In the present case the respondent was a temporary stopgap appointee without any legal entitlement to retain the office. As such the intervention by the Federal Government was perfectly valid. On the aforesaid two questions the writ petition was admitted to hearing and the impugned order was suspended ad infinitum. The learned Additional Attorney General submits that the impugned order suffers from legal defects on merits and even otherwise a writ petition filed at the instance of an employee of the company with non-statutory rules of service was not maintainable. 2. We notice that the suspension of the respondent’s transfer order has created an anomalous situation because as shown by the learned Additional Attorney General, a successor temporary appointee to the post of CEO, FESCO was notified on 4.9.2020 and was approved by the Board of Directors of the Company on 5.9.2020. This aspect was not noticed by the learned Single Bench while suspending the impugned order. 3. Be that as it may, the grant of interim relief which has the effect of permanence is violative of the rule laid down by this Civil Petition No.2482/2020 -:3:- Court in the case of Islamic Republic of Pakistan v. Muhammad Zaman Khan (1997 SCMR 1508). The constitutional jurisdiction by Superior Courts must be exercised according to the settled principles of law. Granting longevity to a suspensory order without hearing the other side is, if at all, done exceptionally. These are words of caution that are necessary for ensuring the majesty of the law and preserving public trust in the courts of law. Having said that, it is also the policy of this Court to interfere with interim orders passed by the High Court only exceptionally. This would be in cases of serious violation of the law or wrongful exercise of jurisdiction. 4. Regardless of the weight of the objections by the petitioner, we consider that the learned Single Judge/the Honourable Chief Justice of the Lahore High Court would be gracious enough to take the aforementioned observation into consideration for deciding the pending petition finally in the week commencing 05.10.2020. If he is preoccupied with other matters then the writ petition shall be fixed for hearing before the Companies Bench of the Lahore High Court in the said week for decision of the matter. Disposed of. Judge Judge Judge Islamabad, 02.10.2020 Naveed/Irshad Hussain NOT APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE SH. AZMAT SAEED CIVIL PETITION NOs. 25-Q & 399 OF 2014 (On appeal from the order dated 20.1.2014 passed by the High Court of Balochistan, Quetta in Constitutional Petition No. 949/2013 a/w C.P. No. 36/2014) Muhammad Akram Baloch (In CPs 25-Q/2014) Akbar Askani (In CP 399/2014) … Petitioners VERSUS Election Tribunal Balochistan, Quetta etc (In both cases) … Respondents For the Petitioners: Mr. Muhammad Aslam Chishti, Sr. ASC Mr. S.A.M. Quadri, AOR (For the petitioners in CP 25-Q/2014 & for the respondents in CP 399/2014) Kh. Haris Ahmed, Sr. ASC Mr. Aman Ullah Kanrani, ASC (For the petitioners in CP 399/2014 and for the respondents in CP 25-Q/2014) For the Respondent (3): Raja Abdur Rehman, ASC (In CP 25-Q/2014) Date of Hearing: 03.04.2014 ORDER CIVIL PETITION NO. 25-Q/2014 TASSADUQ HUSSAIN JILLANI, CJ.- Petitioner and 5 others contested the General Elections held on 11.5.2013 from constituency No. PB-50 Kech-III, Balochistan and respondent No. 2 was declared the returned candidate. Petitioner filed an Election Petition under Section 52 of the Representation of the People Act, 1976 and during the pendency of the said petition, he filed an application praying that the record of Polling Stations No. 29 & 31 namely Jatjoo and Tulamb may be got verified through scanning by NADRA with a view to determine whether the thumb marks CIVIL PETITION NOs. 25-Q & 399 OF 2014 2 appended to counterfoils of votes casted at the afore-referred polling stations were genuine or not. The learned Tribunal vide the order dated 23.12.2013 allowed the application but while doing so came to the conclusion that even the other candidates had leveled allegations of similar nature qua the other polling stations and, therefore, in the interest of justice the counterfoils along with photo voters’ lists and statement of counts be sent to NADRA authorities for examination through the process of biometric examination / scanning of thumb marks appended to counterfoils of ballot papers with respect to all the polling stations, which according to learned counsel for the petitioner are 10 in number. Because although the total polling stations are 69 but the polling took place at 10 polling stations. This order was affirmed by a learned Division Bench of the Balochistan High Court vide the impugned order as the Court was of the view as follows:- ‘We are not in agreement with the contention of the learned counsel for the petitioner for the reason that under Article 164 of the Qanoon-e-Shahat Order, 1984, if a Court considers appropriate, it may allow production of any evidence that may have become available through modern devices or techniques, therefore, the Tribunal, having power of a Civil Court, has rightly directed so, to reach a jut and correct conclusion. The NADRA was since associated with the election process i.e. the preparation of electoral list and provided magnetic ink for the affixation of thumb impressions, therefore, it was the proper authority to conduct scanning of the thumb impressions through a mechanical process. For this reason, the Tribunal was satisfied and deemed it necessary to direct investigation through NADRA for scanning of the counterfoils and thumb impressions thereupon. The order impugned passed by the Tribunal is absolutely within the parameter of the provision of the Act, as such, it is within its jurisdiction.” 2. Learned counsel for the petitioner contended that the learned Tribunal has not given any ground tenable in law to go beyond the relief which was sought by the petitioner; that the suo CIVIL PETITION NOs. 25-Q & 399 OF 2014 3 moto exercise of jurisdiction for such an exercise was not warranted and that the concurrent orders merit interference. 3. Learned counsel for the respondent No. 2 Khawaja Haris Ahmed has defended the judgment by submitting that both the respondent Nos. 2 & 3 had leveled allegations of similar nature qua other polling stations and it was in fitness of things if the comparison in question was carried out in respect of all the polling stations where the polling took place. Learned counsel relied on Muhammad Naeem Kasi vs. Abdul Latif (2005 SCMR 1699), Mian Ejaz Shafi Vs. Ali Ashraf Shah (PLD 1994 SC 867), Muhammad Azam Farooqi Vs. Muhammad Shafi Okarvi (1974 SCMR 471), Bhagwadas Vs. Returning Officer 1228 (1990 SCMR 1228), Shella B. Charles Vs. Election Tribunal (1997 SMR 941), Muhammad Asim Kurd Vs. Lashkri Khan Raisani (1999 SCMR 689), Muhammad Iftikhar Mohmand Vs. Javed Muhammad (1998 SCMR 328) & Abdul Ghani Vs. Election Tribunal, Balochistan (1999 SCMR 1) to contend that this petition even otherwise is not maintainable as the order passed by the Election Tribunal which stands affirmed by the High Court of Balochistan was a concurrent order which would ultimately merge in the final order and petitioner would have a right to challenge it in appropriate proceedings. 4. Having considered the submissions made by learned counsel for the parties, we are of the view that the learned Election Tribunal seized of the Election Petition having appraised the evidence has passed a reasoned order which is neither against the record nor the law declared. Even otherwise, being an interlocutory order, the Court ordinarily is reluctant to interfere unless the said CIVIL PETITION NOs. 25-Q & 399 OF 2014 4 order is against the record or the mandate of law. More-so, when the said order has been concurred by a Division Bench of the High Court. 5. For what has been discussed above, the concurrent orders are unexceptionable, warranting no interference. The petition lacking in merit is accordingly dismissed and leave refused. CIVIL PETITION NO. 399/2014 6. Learned counsel for the petitioner does not want to press this petition, which is disposed of accordingly. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 3rd of April, 2014 Not Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Mushir Alam Civil Petition No. 2515 of 2015. (Against judgment dated 11.06.2015 of Federal Service Tribunal, Lahore, passed in Appeal No.238(L)/CS of 2013.) Senate through its Chairman …Petitioner (s) VERSUS Shahiq Ahmed Khan …Respondent(s) For the Petitioner(s) : Mr. Sajid Ilyas Bhatti, DAG Rana Mazharul Haq, Dy. Secy. For Respondent No.1 : Mr. Aftab Alam Rana, ASC. Date of Hearing : 17.11.2015. ORDER Ijaz Ahmed Chaudhry, J-. Through this petition, the petitioner-Senate of Pakistan has sought leave to appeal against judgment dated 11.06.2015 whereby the Federal Service Tribunal, Lahore, while allowing the Appeal No.238(L)/CS of 2013, filed by the respondent Shahiq Ahmad Khan, set at naught the Notification and order of Appellate Authority dated 10.03.2011 and 26.07.2013, respectively and also directed the petitioner to grant pensionary benefits to the respondent, in accordance with the notification dated 20.10.2004. 2. The terse details of the facts obtaining between the parties, are that the respondent was working as Director in National Construction Limited (Public Limited Company and hereinafter to be referred as NCL) under the administrative control of Ministry of Housing and Works, Government of Pakistan, Islamabad. His services were requisitioned by the petitioner for appointment, on deputation, as Director General, 2 Public Relations (BS-20) in the Senate Secretariat, Islamabad. The respondent accordingly joined the aforesaid position and subsequently vide notification dated 18.10.2003, he was permanently absorbed in BS-20 in the Senate Secretariat w.e.f. 29.09.2003. Thereafter, another notification was issued on 20.10.2004, whereby the competent authority directed that “services of the respondent in his parent department will count towards his seniority in the Senate”. On 18.11.2005, the respondent was appointed as Additional Secretary Senate (BS-21) and superannuated on 21.10.2010. 3. The respondent deposited Rs.2,80,897/- on account of over payment of salaries to him and then he was directed to deposit Rs.3,97,814/- in the office of AGPR on account of G.P. Fund and Rs.4,50,555/- in the State Bank on account of pension contribution. The respondent filed a writ petition before Learned Islamabad High Court, Islamabad, which was dismissed on 25.11.2008. In order to assail the said order, the respondent filed CPLA No.173/2009 before this court, which was disposed of, vide order dated 27.10.2009, diverting the respondent to approach Federal Services Tribunal for remedy. The respondent filed Appeal No.13(R)CS of 2010 in Federal Service Tribunal, Islamabad. It was decided on 24.11.2010 and the matter was remanded to petitioner/Chairman Senate for deciding the status of the respondent and his claim to seniority in presence of the notification of 20.10.2004. The petitioner issued another notification dated 10.03.2011 whereby the earlier notification of 20.10.2004 was withdrawn. The departmental appeal, filed by the respondent, was also rejected vide order dated 26.10.2013. 4. The respondent filed appeal before Federal Service Tribunal, Camp Office, Lahore, which was allowed vide judgment dated 11.06.2015 and the notification of 10.03.2011 and order of the Appellate Authority dated 26.07.2013 were set aside and the petitioner/Chairman Senate of Pakistan was directed to grant the pensionery benefits to the respondent in accordance with notification of 20.10.2004. The 3 petitioner felt aggrieved therefrom and has brought this petition, seeking leave to appeal. 5. Mr. Sajid Ilyas Bhatti, learned DAG contends that the respondent was not a civil servant at the time, when his services were requisitioned from NCL. He could not have been inducted as such n the Senate Secretariat, Islamabad. He was not working on a pensionable post. After absorption, his previous service would not have been counted under the law and he was also not entitled to claim seniority on account of his previous service in NCL. It is further submitted that the respondent was working as Acting Secretary in the Senate Secretariat, when he got prepared a summary for his absorption in the Senate Secretariat, per paras Nos.32, 33 and 65, but the then Chairman Senate did not approve the summary and para No.67 shows that he posted a query “why this, pl. discuss”. Learned DAG maintained that despite the development, the respondent managed to get issued direction for issuance of revised notification as per para 68 of the summary, without any approval of the Chairman Senate/Competent Authority. It is submitted that the previous service of the appellant n NCL could not be reckoned for the purpose of seniority and pensionery benefits. The notification and order of the Appellate Authority issued on 10.03.2011 and 06.07.2013 were passed after observing lawful procedure. No illegality has been committed by the petitioner. 6. The learned DAG has raised serious objections on the judgment of the Federal Service Tribunal, passed on 11.06.2015 and stated that the observations, recorded by FST that proper opportunity of hearing was not afforded to the respondent before issuance of the notification and order of the Appellate Authority and that such stance is not supported from the record, as the respondent was heard in person by the Acting Chairman Senate on 22.07.2013, before passing the order on 26.07.2013. It was in compliance with the order dated 18.12.2012, passed by the learned Lahore High Court, in Writ Petition No. 31121/2012. It is submitted that Federal Services Tribunal, 4 while setting aside the order and notification mentioned above, did not take into consideration the facts available on the record and erroneously recorded its finding to blame the petitioner for not providing the opportunity of hearing to the respondent and that even if it is presumed that the respondent was not heard prior to the disposal of his departmental appeal, Federal Service Tribunal was not justified in passing an order for grant of pensionery benefit to the respondent and to restore the notification dated 20.10.2014. At the worst, it could remand the matter to the petitioner for a fresh decision on merits. That, Federal Service Tribunal showed colourful exercise of power. That the notification dated 20.10.2004 was void and had been manipulated by the respondent, therefore, had to be withdrawn and the judgment of the Federal Service Tribunal is meriting to be set aside. 7. The learned counsel for the respondent contended that the petitioner has twisted the facts. In fact, no opportunity of hearing was provided to the respondent before passing the order dated 10.03.2011. Similarly, the notification of 20.10.2004 was defended, as the same had been issued to reflect the order of the Competent Authority. The petitioner did not initiate any measures during the past so many years and the respondent has been targeted in the backdrop of some personal grudges, but only after his superannuation. The learned counsel added that no proceedings could have been initiated against the respondent, in view of the bar, contained in section 54-A of the Fundamental Rules. Reliance has been placed on the judgment of this Court reported as 2000 SCMR 1864 whereby it was pronounced that the services rendered in statutory body can be taken into consideration for the grant of pensionery benefits. That the whole proceedings, prior to the notification and order dated 10.03.2011 and 26.07.2013, respectively had been solemnized in a lawful manner and the petitioner was divested of any legal justification to pass an order on 26.07.2013 for withdrawal of the notification dated 20.10.2004. It was prayed that the leave may not be granted as 5 the judgment of the learned Federal Service Tribunal is impregnable on any legal ground. 8. We have heard the learned counsel for the parties and also had the opportunity of appraising the record. The respondent was inducted in the Senate Secretariat in BS-20, vide notification dated 18.10.2003. A few months later, a summary was got prepared and also put up, ordaining that “his services in his parent department will count towards his seniority in the Senate from the date of promotion to Director Grade equivalent to BS-20 of Government scales”. Needless to state that in the said notification of 20.10.2004, there is absolutely no mentioning of the pensionery benefits. The version of the petitioner is that the said notification of 20.10.2004 was without any lawful basis. The summary was moved to this effect, but it did not fancy the Chairman Senate and he had posted a query “why this, pl. discuss”, meaning thereby that the summary had not been approved by the Competent Authority which was none other than the Chairman Senate. It is also significant that the respondent was working as Acting Secretary Senate, during those days and without formal approval of the Chairman Senate/Competent Authority, the notification for permanent absorption of the respondent in Senate Secretariat n BS-20 and for counting of his service in the Parent Department was issued. The crux of the controversy lies in the legal status of this notification. The cardinal question, cropping up in this case, was that whether notification dated 20.10.2004 had been issued lawfully. Incidentally the answer is in the negative. Without approval of the Competent Authority, the respondent could neither be permanently absorbed in Senate Secretariat nor his previous service, counted for the purpose of seniority. It is manifest in the circumstances that the notification dated 20.10.2004 was void ab-initio as the same had been issued without any legal authority and the beneficiary was none other than the respondent who was working as Acting Secretary Senate during those days. 6 9. We have also noticed that the Office Memorandum was issued by the Finance Division, Government of Pakistan on 22.10.1985, wherein the guidelines have been provided to meet such eventualities, as had arisen in this case. The contents of the same are available in para No.1(iii) of said O.M. It is to be read in juxtaposition with U.O.No.F.4(1)R-2/2006-527, dated 03.11.2006, whereby it was observed that NCL is a company registered in the Security and Exchange Commission of Pakistan under the Companies Law, having its own pay scale and services rules and its employees were not civil servants and their pay on appointment to a civil post under the Government is not protectable under the prescribed policy of Government, circulated vide Finance Division’s O.M. dated 12.08.2002 and also that NCL is not a pensionable organization having Contributory Provident Fund Scheme for its retiring employees. Therefore, the service rendered in NCL could not be counted towards pension in terms of Article 361 of Civil Service Regulations (CSR) and that the respondent was of the view that he should not sustain a loss on account of his basic pay and in this backdrop, the Finance Division recommended that the respondent be compensated through grant of six advance increments in the light of F/R 27. The Chairman Senate approved six premature increments to the respondent w.e.f. 29.09.2003. The question arises that when the respondent had been compensated by means of six premature increments, how the pensionery benefits could be awarded? It is evident from the above reference that the advance increments were sanctioned in favour of the respondent w.e.f. 29.09.2003, keeping in view the facts that he was disentitled for pensionary benefits. Furthermore, the grant of pensionery benefits could not be envisioned from the notification of 20.10.2004. 10. We have perused the impugned judgment dated 11.06.2015, passed by Federal Service Tribunal, Lahore, carefully. In para 8, the Members of Federal Service Tribunal conceded that there was factual and legal controversy about the notification of 20.10.2004. Though there is some confusion of the date apparently in the minds of the 7 members, who cited the date as 10.03.2011, whereas it was to be 20.10.2004 and observed that no regular inquiry had been conducted, which, in fact, was needed. The question falls for determination that when the very basis of the notification is in controversy, how the same could be sustained on legal premises. It was ineluctable course, in the circumstances, for the Federal Service Tribunal to precisely determine the sanctity of the notification of 20.10.2004 before taking pa8ns to crucify the notification of 10.03.2011 which was meant for the withdrawal of the notification of 20.10.2004. A void notification cannot be enforced. From the facts and circumstances of this case, the allegation of forgery is also made out, to which the petitioner did not advert, for unknown reasons. The respondent appears to be beneficiary of notification of 20.10.2004 and could have been dealt with accordingly. 11. This Court has held repeatedly that no limitation is prescribed to competently and successfully challenged a void order/notification. We are also astonished to note that the Federal Service Tribunal passed a direction to the petitioner to grant pensionery benefits to the respondent in accordance with the notification dated 20.10.2004. In fact, there was no reference of any pensionery benefits in the notification of 20.10.2004. Such observations by Federal Service Tribunal are perverse and based on misreading of the record. Wrong mentioning of the dates in paras Nos. 8 and 11 apart, there was absolutely no justification for such decision, which was passed in an arbitrary and capricious manner. It demonstrates colourful exercise of power and is shorn of any judicial acumen. 12. In the impugned judgment, there was import of the principle of locus poenitentiae to rescue the respondent. We are constrained to observe that the principle is meant to condone a bona-fide mistake and not to be pressed into service for reaping the benefit of any fraud or to camouflage the same. The members of the Federal Service 8 Tribunal were not justified in the circumstances to invoke the principle of locus poenitentiae, in the fact and circumstances of this case. 13. Besides the legal status of the notification of 20.10.2004, some other controversies like the status of the respondent as civil servant while serving in NCL, right of pensionery benefits as such and the reckoning of his service in NCL for the purpose of seniority in the Senate Secretariat are also involved, which have not been comprehensively adverted to in the impugned judgment, passed by the Members of Federal Service Tribunal on 11.06.2015 in a perfunctory manner and their judicial approach is leaving much to be desired. Keeping in view the observations recorded hereinabove; the listed petition is converted into appeal and allowed. Consequently, the impugned judgment passed on 11.06.2015 by Members of Federal Service Tribunal is set aside. The Appeal No.238(L)/CS/2013 is remanded with the direction that the learned Chairman Federal Service Tribunal will entrust this Appeal to a Bench at Islamabad for decision within a period of three months, in accordance with law and keeping in view the above observations. 14. However, it is directed that the observations made hereinabove regarding the conduct of the Members of the Service Tribunal, who have passed the impugned judgment, dated 11.06.2015, will be transmitted to the concerned quarters for necessary action, in accordance with law. The same will also be placed before the Hon’ble Chief Justice of Pakistan for perusal and necessary action. Judge Judge Islamabad, the 17th of November, 2015 ZR/* APPROVED FOR REPORTNG

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE QAZI FAEZ ISA. CIVIL PETITIONS NO. 2532 TO 2549 AND 2580 OF 2015 AND 2594 TO 2600 OF 2015 AND 2602 TO 2603 OF 2015 AND 2608 TO 2633 OF 2015. (On appeal against the judgment dt. 28.08.2015 and 8.9.2015 passed by the High Court of Sindh Karachi in Constitution Petitions No.D-1494, D-873, D-1581, D-1582, D-1583, D-1729, D-1730, 2442, D- 2758,D-2759, D-2760, D-3541, D-4015, D.4016, D-4087, D-4187, D-4521, 4583, D-4561, D-4563, D-4381, D-4289, D-2414, D-4769, D-4014, D- 4218, D-4562, D-4564, D-4380, D-4565, D-4767, D-2972, D-4289, D- 4218, 4377-D, 2387, D-4218, D-4072, 4032-D, 4370-D, 4402-D, 4217-D, 4886-D, 4218-D, D-344, D-4768, D-4217, D-1877, D-2387, D-4370, D- 4378, D-344, D-4796, D-4288 of 2015). Majeed and Sons Steels (Pvt) Ltd. (in CP.2532/15) Shanghai Industries (Pvt) Ltd. (in CP.2533/15) Razaque Steels (Pvt) Ltd. and another. (in CP.2534/15) Nawab Brothers Steel Mill (Pvt) Ltd and another. (in CP.2535/15) Dewan Steel Mills. (in CP.2536/15) M/s Union Steel Industries. (in CP.2537/15) Dewan Steel Mills. (in CP.2538/15) Shanghai Industries(Pvt) Ltd. (in CP.2539/15) Dewan Steel Mills. (in CP.2540/15) M/s Union Steel Industries. (in CP.2541/15) Nawab Brothers Steel Mills (Pvt) Ltd. (in CP.2542/15) Shanghai Industries (Pvt) Ltd. (in CP.2543/15) CIVIL PETITIONS NO. 2532 TO 2549 AND 2580 OF 2015 AND 2594 TO 2600 OF 2015 AND 2602 TO 2603 OF 2015 AND 2608 TO 2633 OF 2015. 2 Ittehad Steel Industries. (in CP.2544/15) M/s Union Steel Industries and another. (in CP.2545/15) Dewan Steel Mills. (in CP.2546/15) Razaque Steels (Pvt) Ltd. (in CP.2547/15) Shanghai Industries (Pvt) Ltd. (in CP.2548/15) Shanghai Industries (Pvt) Ltd. (in CP.2549/15) M/s Umer Traders and others. (in CP.2580/15) Abdul Wahab. (in CP.2594/15) Sheikh Nadeem Anwar. (in CP.2595/15) Khizer Arif. (in CP.2596/15) Abdul Salam. (in CP.2597/15) M/s BBJ Pipe Industries Ltd. (in CP.2598/15) M/s Bashir Pipe Industries (Pvt) Ltd. (in CP.2599/15) M/s Supreme Tube Industries (Pvt) Ltd. (in CP.2600/15) M/s AN Industries (Pvt) Ltd. (in CP.2602/15) M/s Khalid Pipe Mills (Pvt) Ltd. (in CP.2603/15) Mansoor Ahmed Khan. (in CP.2608/15) Sheikh Nadeem Anwar. (in CP.2609/15) M/s National Tubes (Pvt) Ltd. (in CP.2610/15) CIVIL PETITIONS NO. 2532 TO 2549 AND 2580 OF 2015 AND 2594 TO 2600 OF 2015 AND 2602 TO 2603 OF 2015 AND 2608 TO 2633 OF 2015. 3 Shahid Majee. (in CP.2611/15) M/s Sheikh Pipe Mills (Pvt) Ltd. (in CP.2612/15) M/s Win Pipe Industries (Pvt) Ltd. (in CP.2613/15) M/s Modern Pipe Mills (Pvt) Ltd. (in CP.2614/15) M/s AKK Enterprises (SMC-Pvt) Ltd. (in CP.2615/15) M/s Mehboob Steel Pipe Industry. (in CP.2616/15) M/s M.P. Industries (Pvt) Ltd. (in CP.2617/15) M/s Steel Craft (Pvt) Ltd. (in CP.2618/15) M/s Samad Pipe Industries Ltd. (in CP.2619/15) M/s Jamal Pipe Industries Ltd. (in CP.2620/15) M/s Grandeur Metals (Pvt) Ltd. (in CP.2621/15) M/s Abdul Haq Pipe Industries (Pvt) Ltd. (in CP.2622/15) M/s Farooq Steel Industries (Pvt) Ltd. (in CP.2623/15) M/s Bilal Steel Industries. (in CP.2624/15) Shahid Majeed. (in CP.2625/15) Muhammad Amjad Sharif. (in CP.2626/15) Kamran Butt. (in CP.2627/15) Muhammad Amjad Sharif. (in CP.2628/15) M/s Pak Pipe Steel Industries (Pvt) Ltd. CIVIL PETITIONS NO. 2532 TO 2549 AND 2580 OF 2015 AND 2594 TO 2600 OF 2015 AND 2602 TO 2603 OF 2015 AND 2608 TO 2633 OF 2015. 4 (in CP.2629/15) M/s Karachi Tube Mills (Pvt) Ltd. (in CP.2630/15) Sheikh Nadeem Anwar. (in CP.2631/15) M/s Win Pipe Industries (Pvt) Ltd. (in CP.2632/15) M/s Win Pipe Industries (Pvt) Ltd. (in CP.2633/15) … Petitioners Versus Federation of Pakistan through its Secretary, M/o Economic Affairs, Islamabad and others. …Respondents (in all cases) For the petitioners: Mr. Munir A. Malik, Sr. ASC Syed Rafaqat Hussain Shah, AOR Mr. Shahbaz Butt, ASC Mr. Khurram Saeed, ASC Mr. Mehmood A. Sheikh, AOR Mr. Faiz-ur-Rehman, AOR. For the respondents: Raja Muhammad Iqbal, ASC Raja Abdul Ghafoor, AOR Mr. Khurram Raza, ASC Mr. Ali Waheed Khan, Dy. Director of Customs MCC-Appraisement (EAST) Karachi Date of hearing: 15.09.2015. (Judgment Reserved) J U D G M E N T EJAZ AFZAL KHAN, J.- These petitions for leave to appeal have arisen out of the judgment dated 28.08.2015 of a Division Bench of Sindh High Court whereby it dismissed the petitions filed by the petitioners. 2. The issue urged by the petitioners before the High Court through a Constitution Petition and now before this Court through a petition for leave to appeal is that the cumulative incidence of CIVIL PETITIONS NO. 2532 TO 2549 AND 2580 OF 2015 AND 2594 TO 2600 OF 2015 AND 2602 TO 2603 OF 2015 AND 2608 TO 2633 OF 2015. 5 customs-duties leviable under sub-sections (1), (3) and (5) of section 18 of the Customs Act shall not exceed the rates agreed to by the Government of Pakistan under multilateral trade agreements. The learned ASC by referring to clause 5 (b) of Article XXIV of the General Agreement on Tariffs and Trade contended that duties and other regulations of commerce maintained in each of the constituent territories and applicable at the formation of free trade area or the adoption of such interim agreement to the trade of contracting parties not included in such area or not parties to such agreement shall not be higher or more restrictive than the corresponding duties and other regulations of commerce existing in the same constituent territories prior to the formation of the free- trade area, or interim agreement as the case may be. The learned ASC by referring to proviso to sub-section 5 of section 18 of the Customs Act contended that the cumulative incidence of customs duties leviable under sub-sections (1), (3) and (5) shall not exceed the rates agreed to by the Government of Pakistan under multilateral trade agreements. Any duty, the learned ASC maintained, levied in derogation of clause 5(b) of Article XXIV and proviso to sub-section 5 of section 18 of the Customs Act shall not have any effect. Bilateral agreement, the learned ASC added, doesn’t find mention in proviso to sub-section 5 of section 18 of the Customs Act but this will not have much significance as every agreement even if bilateral in nature becomes multilateral when it passes through the mechanism provided by clauses 7 and 8 of Article XXIV of the General Agreement on Tariffs and Trade. The learned ASC by winding up his arguments contended that where the duty at the time of conclusion of the General Agreement on CIVIL PETITIONS NO. 2532 TO 2549 AND 2580 OF 2015 AND 2594 TO 2600 OF 2015 AND 2602 TO 2603 OF 2015 AND 2608 TO 2633 OF 2015. 6 Tariffs and Trade was 5% it could not exceed that thereafter. When asked what does the expression “rates agreed to” used in the proviso mean, the learned ASC by answering the question again referred to clause 5(b) of Article XXIV of the Customs Act. 3. The learned ASC appearing on behalf of the respondents contended that the question posed by the bench is answered by Part-A-2 of the table. He, by referring to the relevant table of tariffs and import by product groups contended that the maximum duty agreed to is 75% while for the most favoured nations the maximum is 35%. If this aspect of the case, the learned ASC contended, is taken into account, then the duties in any form do not exceed what was agreed to by the Government of Pakistan under the multilateral trade agreement. The impugned judgment, the learned ASC maintained, having been rendered after considering all the conceivable aspects of the proposition is unassailable from whatever angle it is looked at. 4. We have gone through the record, the relevant provisions and considered the arguments addressed at the bar. 5. Before we appreciate the controversy stirred before us at the bar, it is worthwhile to refer to section 18 of the Customs Act which reads as under :- “18. Goods dutiable.__ (1) Except as hereinafter provided, customs duties shall be levied at such rates as are prescribed in the First Schedule or under any other law for the time being in force on. – a) goods imported into Pakistan. b) goods brought from any foreign country to any customs station, and without payment of duty there, transshipped or transported for, or thence carried to, and imported at any other customs station; and c) goods brought in bond from one customs station to another. CIVIL PETITIONS NO. 2532 TO 2549 AND 2580 OF 2015 AND 2594 TO 2600 OF 2015 AND 2602 TO 2603 OF 2015 AND 2608 TO 2633 OF 2015. 7 2) No export duty shall be levied on the goods exported from Pakistan. 3) The Federal Government may, by notification in the official Gazette, levy, subject to such conditions, limitations or restrictions as it may deem fit to impose, a regulatory duty on all or any of the goods to be imported or exported, as specified in the First Schedule at a rate not exceeding one hundred per cent of the value of such goods as determined under section 25, or as the case may be, section 25-A; 4) The regulatory duty levied under sub-section (3) shall, - a) be in addition to any duty imposed under sub- section (1) or under any other law for the time being in force; and b) be leviable on and from the day specified in the notification issued under that sub-section, notwithstanding the fact that the issue of the official Gazette in which such notification appears is published at any time after that day. 5) The Federal Government may, by notification in the official Gazette, levy an additional customs-duty on such imported goods as are specified in the First Schedule, at a rate not exceeding thirty-five per cent of value of such goods as determined under section 25, or as the case may be, section 25-A: Provided that the cumulative incidence of customs-duties leviable under sub-sections (1), (3) and (5) shall not exceed the rates agreed to by the Government of Pakistan under multilateral trade agreements. 6. The additional customs-duty levied under sub-section (5) shall be - a) in addition to any duty imposed under sub-sections (1) and (3) or under any other law for the time being in force; and b) leviable on and from the day specified in the notification issued under that sub-section, notwithstanding the fact that the official Gazette in which such notification appears is published at any time after that day.” 6. How far clause 5 of Article XXIV of the General Agreement on Tariffs and Trade is restrictive of the duties to be imposed on the goods imported in Pakistan also merits a careful look which reads as under :- “Accordingly, the provisions of this Agreement shall not prevent, as between the territories of contracting parties, the formation of a customs union or of a free-trade area or the CIVIL PETITIONS NO. 2532 TO 2549 AND 2580 OF 2015 AND 2594 TO 2600 OF 2015 AND 2602 TO 2603 OF 2015 AND 2608 TO 2633 OF 2015. 8 adoption of an interim agreement necessary for the formation of a customs union or of a free-trade area; provided that : a) with respect to a customs union, or an interim agreement leading to a formation of a customs union, the duties and other regulations of commerce imposed at the institution of any such union or interim agreement in respect of trade with contracting parties not parties to such union or agreement shall not on the whole be higher or more restrictive than the general incidence of the duties and regulations of commerce applicable in the constituent territories prior to the formation of such union or the adoption of such interim agreement, as the case may be; b) with respect to a free trade area, or an interim agreement leading to the formation of a free-trade area, the duties and other regulations of commerce maintained in each if the constituent territories and applicable at the formation of such free-trade area or the adoption of such interim agreement to the trade of contracting parties not included in such area or not parties to such agreement shall not be higher or more restrictive than the corresponding duties and other regulations of commerce existing in the same constituent territories prior to the formation of the free- trade area, or interim agreement as the case may be. c) any interim agreement referred to in sub- paragraphs (a) and (b) shall include a plan and schedule for the formation of such a customs union or of such a free-trade area within a reasonable length of time.” 7. A look at the proviso to sub-section 5 of section 18 of the Customs Act in general and the words “rates agreed to” in particular shows that rates have all along been agreed to. Reference to Part-A-2 of the relevant table will clinch the whole matter as it not only provides final bound duties but also duties prescribed for the most favoured nations. Regulatory duty imposed through the impugned S.R.O does not in any case exceed the duties prescribed by the table. Once the table referred to above shows the rates agreed to, reference to any other provision of the General Agreement on Tariffs and Trade would not be of much significance. When we asked the learned ASCs as to how does the expression “rates agreed to” imply or contemplate the duties in force at the time of executing the multilateral agreement when CIVIL PETITIONS NO. 2532 TO 2549 AND 2580 OF 2015 AND 2594 TO 2600 OF 2015 AND 2602 TO 2603 OF 2015 AND 2608 TO 2633 OF 2015. 9 they were in force independently of such agreement, he could not give any satisfactory reply and rightly so because proviso to sub- section 5 of section 18 of the Customs Act being clear and unequivocal does not admit of the interpretation sought to be placed thereon by the learned ASCs for the petitioner. Had the proviso been inserted before the execution of the agreement, the argument advanced by the learned ASC would have had some force. But where the insertion of the proviso was made long after the execution of the agreement, the words “agreed to” cannot be lightly ignored. The rates reflected in the relevant heading viz-a-viz the most favoured nations clearly point to what was agreed to. An effort was made to turn the bilateral agreement into a multilateral agreement by alluding to what has been provided by clauses 7 and 8 of Article XXIV of the General Agreement on Tariffs and Trade but an agreement which is essentially bilateral cannot be given multilateral hue especially when it is between the two nations. Much stress was laid on Article 8 of Free Trade Agreement between Government of Islamic Republic of Pakistan and the Government of Peoples Republic of China providing for progressive elimination of Customs Duty on goods originating in the territory of another party but it does not provide anywhere that the rates agreed to would cease to have effect as soon as the agreement is entered into. The words “progressive elimination” used in the Article envision step by step rather than immediate elimination of the duties. 8. Absence of the word bilateral from the proviso to sub- section 5 of section 18 of the Customs Act being significant and self- speaking further narrows the gamut of controversy. We, thus cannot read bilateral in the proviso when it is not there. When the provisions CIVIL PETITIONS NO. 2532 TO 2549 AND 2580 OF 2015 AND 2594 TO 2600 OF 2015 AND 2602 TO 2603 OF 2015 AND 2608 TO 2633 OF 2015. 10 of the Customs Act are clear and unambiguous, we would not like to supply omission and read in the statute what has been deliberately omitted. “It is not our function, as was held by Mr. Justice Walsh, in the case of Attorney General. v. Bihari, re Australia Factors Limited (1966) 67 S. R. (N.S.W) 150; to repair the blunders that are to be found in the legislation.” Let them be corrected by the legislature itself if at all they constitute blunders. 9. The questions whether an agreement or treaty be it bilateral or multilateral, can be stretched to alter or override an express and unambiguous provision of the statute and whether its breach, if any, can be sought to be repaired through the Courts of law unless they have been vested with such jurisdiction? In the case of Ms. Shehla Zia. v. Wapda (PLD 1994 SC 693), this Court while dealing with a similar question held as under :- “The concern for protecting environment was first internationally recognized when the declaration of United Nations Conference on the Human Environment was adopted at the Stockholm on 16.6.1972. Thereafter it had taken two decades to create awareness and consensus among the countries when in 1992 Rio Declaration was adopted. Pakistan is a signatory to this declaration and according to Dr. Perwaiz Hasan although it has not been ratified or enacted, the principle so adopted has it own sanctity and it should be implemented, if not in letter, at least in spirit. An international agreement between the nations if signed by any country is always subject to ratification, but it can be enforced as a law only when legislation is made by the country through its legislature. Without framing a law in terms of the international agreement the covenants of such agreement cannot be implemented as a law nor do they bind down any party.” In the case of Societe Generale De Surveillance S.A. v. Pakistan through Secretary, Ministry of Finance, Revenue Division, Islamabad (2002 SCMR 1694), this Court reaffirmed what was held in the case of Ms. Shehla Zia held as under :- “Admittedly, in Pakistan, the provisions of the Treaty were not incorporated through legislation into the laws of the CIVIL PETITIONS NO. 2532 TO 2549 AND 2580 OF 2015 AND 2594 TO 2600 OF 2015 AND 2602 TO 2603 OF 2015 AND 2608 TO 2633 OF 2015. 11 Country, therefore, the same did not have the effect of altering the existing laws, as such, rights arising therefrom called treaty rights cannot be enforced through Court as in such a situation, the Court is not vested with the power to do so. It may be significantly mentioned here that according to Article 175 (2) of the Constitution of Islamic Republic of Pakistan, no Court has any jurisdiction unless conferred by or under any law or the Constitution, therefore, treaty unless was incorporated into the law so that it become part of Municipal Laws of the Country, no Court shall have jurisdiction to enforce any right arising therefrom.” 10. Above all else, when cumulative incidence of customs- duties leviable under sub-section (1), (3) and (5) of section 18 of the Customs Act does not exceed the rates agreed to by the Government of Pakistan under multilateral trade agreements, we don’t think the petitioners could make out a case for issuance of the writ asked for. The view taken by the High Court thus appears to be correct and un-exceptionable. 11. For the reasons discussed above, these petitions being without merit are dismissed and the leave asked for is refused. Judge Judge Announced in open Court at Islamabad on 18.09.2015. Judge ‘Not Approved For Reporting’ MAZ

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI Civil Petition No.2580 of 2020. (Against the judgment dated 15.9.2020 passed by the Islamabad High Court in FAO No. 113 of 2016) Munawar Ahmed Chief Editor Daily Sama and another. Petitioner(s) Versus Muhammad Ashraf and others Respondent(s) For the Petitioner(s) : Mr. Bashir Khan, ASC. For the Respondent-1 : Mr. Afzal Malik, ASC Date of Hearing : 05.01.2021 ORDER Sajjad Ali Shah, J.- The petitioners being the Chief Editor and the Editor of Daily Sama respectively, seek leave of this Court to file an appeal against the judgment of the Islamabad High Court whereby the said Court while dismissing their appeal affirmed a decree directing them to pay a sum of Rupees fifteen million to the respondent as damages under the Defamation Ordinance, 2002 (hereinafter referred to as “the Ordinance”). 2. Briefly, the petitioners published a news item in the newspaper Daily Sama leveling certain derogatory allegations against the respondent which gave rise to his filing of suit against the petitioners and others under Section 3(2) of “the Ordinance” claiming damages of Rs.1,50,00,000/- in order to vindicate his CP-2580/2020 2 honour and esteem. The detail of the damages allegedly suffered by the respondent was provided in the plaint to the following effect:- “1. Injury to the body and soul by the tortuous act of defamation. = 5 million. 2. Injury to the career, reputation, credit, to each of the defendant. = 5 million. 3. Loss to reputation, prestige and esteem. = 5 million. Total: = 15 million”. 3. It appears that the petitioners after having been served, despite several opportunities, failed to file their defence by way of written statements, consequently, their right to file the defence was struck off on 12.1.2015 and ultimately the suit on 16.5.2015 was decreed as prayed for. The petitioners instead of challenging the judgment by way of appeal, belatedly filed an application under Order IX Rule 13 of CPC seeking setting aside of the ex parte judgment and decree which application, after hearing, was dismissed on 5.10.2016. The petitioners thereafter filed an appeal against the said order before the Islamabad High Court which was dismissed through the impugned judgment. 4. Learned counsel for the petitioners contends that no proper opportunity was provided to the petitioners to file their defence and further some of the defendants were not even served despite they were proceeded ex parte. Per counsel, even the High Court did not pay any heed to the submissions that adjudication on merits is the ultimate goal of the administration of justice. 5. On the other hand, the learned counsel for the respondent contends that petitioners were duly served. They CP-2580/2020 3 engaged their attorney who filed power of attorney on their behalf and despite grant of sufficient time, the petitioners failed to file their defence leaving no option for the trial Court but to proceed ex parte against them. Per counsel, even the decree was never challenged as the petitioners after almost 10 months of the passing of decree, filed an application under Order IX Rule 13 CPC which of course had to be dismissed on merits as well as being barred by time. It was lastly contended that the impugned judgment meets all standards of justice and, therefore, needs no interference. 6. We have heard the learned counsel for the respective parties and have perused the record. The petitioners could not make out any case for interference in the impugned judgment on account of being ex parte as the record reflects that they miserably failed to avail all the opportunities which were provided to them for filing of their defence and, therefore, the Courts below were justified in striking off their defence and to proceed ex parte in accordance with law. However, what has attracted our attention is that the Courts below, in a mechanical fashion and without applying their judicial mind to assess the quantum of damages in accordance with the evidence brought on record by the plaintiff and the principles settled by this Court, proceeded to decree the suit as prayed for. Consequently, we have asked the learned ASC for the respondent to show from the evidence that the respondent has suffered any bodily injury for which he has claimed damages in the sum of Rs.5 million and likewise to further show from the record as to what injury to his career was caused by such defamatory statement for which again a further sum of Rs.5 million has been CP-2580/2020 4 claimed. The learned counsel for the respondent was not able to demonstrate from the record that the plaintiff has adduced any evidence to prove special damages allegedly sustained on account of “bodily injury” or “injury to his career”. 7. Special damages are defined as the actual but not necessarily the result of the injury complained of. While awarding special damages, it is to be kept in mind that the person claiming special damages has to prove each item of loss with reference to the evidence brought on record. This may also include out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Reference is made to the cases of Malik Gul Muhammad Awan v. Federation of Pakistan (2013 SCMR 507) and Abdul Majeed Khan v. Tawseen Abdul Haleem (2012 PLC(CS) 574 SC). 8. As to the submission that it was an ex-parte decree and there was no rebuttal denying the claim of the respondent and therefore it had to be decreed as prayed. The contention is totally misconceived as it has been repeatedly held by this Court that even in case where the defendants are declared ex parte, though the Courts are empowered to pass ex parte decree, but such discretionary power must be exercised judicially. In cases where the defendants are declared ex parte, Courts are not supposed to only pass ex parte decree in favour of the plaintiff by assessing his claim in toto, but are saddled with the duty to examine the worth/credence of each piece/item of plaintiff’s claim before accepting or rejecting it. However, in the instant case the Courts have miserably failed to examine that the respondent has totally CP-2580/2020 5 failed to adduce any evidence, either oral or documentary, in support of his claim that he has actually sustained bodily injury or any set back to his career, therefore, the hefty special damages granted without application of judicial mind could not be sustained. 9. General damages normally pertain to mental torture and agony sustained through derogatory/defamatory statements. Since there is no yardstick to gauge such damages in monetary terms, therefore, while assessing damages on account of such inconvenience, the Courts apply a rule of thumb by exercising its inherent jurisdiction for granting general damages on a case to case basis. 10. In the instant case, the respondent, by producing un- rebutted documentary as well as oral evidence has fully proved that the publication released by the petitioners was defamatory and on account of such defamatory publication, the respondent suffered mental torture and inconvenience. However, it was not justified for the Courts to pass a decree for the amount which the plaintiff desired. It is important to note that once it is determined that a person has suffered mental shock and injury and is entitled to compensation on account of such defamatory statement, then the other important and more difficult question which arises is to weigh the quantum of damages for such loss caused to him by such wrongful act. The burden in such situation, like in all cases, is on the shoulder of the plaintiff to prove the magnitude of such suffering. But again since such suffering could not be converted or gauged in monetary terms and, therefore, the Court has to apply CP-2580/2020 6 rule of thumb. The other aspect which needs to be kept in mind by the Courts while awarding general damages on account of mental torture/nervous shock is that damages for such suffering are purely compensatory to vindicate the honour or esteem of the sufferer, therefore such damage should not be exemplary or punitive as the sufferer should not be allowed to make profit of his reputation. 11. The Court has not given its finding on any of the aspect involved in the instant case nor adopted any criteria to gauge the damages claimed. In such situation, the Court has failed to judicially exercise its discretion while passing the ex parte decree and has granted the damages in a mechanical fashion without examining the legality or worth of the respondent’s claim, therefore, notwithstanding the fact that we find Respondent entitled to an ex parte decree but are of the considered view that such decree could not be sustained, as passed without application of mind and being violative of the basic principles of exercising judicial powers. After we had examined this aspect, counsel for the respondent interjected and submitted that since it has been established that the petitioners had published defamatory statement which at least has defamed the respondent in terms of “the Ordinance”, therefore, instead of remanding the case to the trial Court to determine the damages by applying settled principles of law, the minimum amount of general damages as provided under Section 9 of “the Ordinance” be awarded with the direction to the petitioner to publish an apology as provided under the law. Section 9 of “the Ordinance” reads as follows:- CP-2580/2020 7 “9. Remedies.– Where defamation shall be proved to have occurred, the Court may pass order directing the defendant to tender an apology, if acceptable to the plaintiff, and publish the same in similar manner and with the same prominence as the defamatory statement made and pay reasonable compensatory damages as general damages with a minimum of Rs.50,000/- (Rupees fifty thousands) [and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the Court[:] [Provided that in case of the originator the minimum compensatory damages as general damages shall be three hundred thousand rupees.]” 12. There is no dispute that the respondent has undeniably proved that the defamation has occurred but the Court has not independently applied its discretion though by way of rule of thumb to ascertain general damages and for this purpose we intended to remand the matter but when the respondent is ready to accept the minimum bar of general damages as provided under the law then no useful purpose would be served by remanding the case, therefore, in our opinion the proposal of the learned ASC for the respondent is very fair. 13. The respondent has proved that the petitioners being originators had published an article which of course was defamatory and has caused inconvenience and mental torture/agony to the respondent and, therefore, the respondent under the law is entitled not only to minimum damages in the sum of Rs.300,000/- but also an apology in the similar manner and with the same prominence as the defamatory statement was published in terms of Section 9 of the Ordinance. In the circumstances, instead of remanding the matter, we modify the CP-2580/2020 8 decree and award monetary compensation of Rs.300,000/- only to the Respondent which shall be recovered jointly and severally from the Petitioners. This petition is converted into appeal and is allowed partially in the above terms. These are the reasons of our short order of even date which reads as follows:- “For reasons to be recorded later, this petition is converted into appeal and partly allowed. The impugned judgments are modified to the extent that the compensatory damages awarded to the respondent are reduced to Rs.300,000/- (three lac) and publication of apology under Section 9 of the Defamation Ordinance, 2002”. Judge Judge Judge Islamabad 05.01.2021 A.Rehman Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE UMAR ATA BANDIAL CIVIL PETITION NO.2640 OF 2016 (Against the judgment dated 31.5.2016 of the Islamabad High Court, Islamabad passed in ITR No.24/2008) M/s Shifa International Hospital, Islamabad …Petitioner(s) VERSUS Commissioner of Income Tax/Wealth Tax, Islamabad …Respondent(s) For the petitioner(s): Hafiz Muhammad Idrees, ASC For the respondent(s): Mr. Babar Bilal, ASC Ms. Shazia Bilal, ASC Date of hearing: 02.02.2017 … ORDER MIAN SAQIB NISAR, CJ.- The facts of the case are that the petitioner assessee is a public limited company and derives income from operating a hospital called “Shifa International Hospital”. It filed its return for the assessment year 2000-2001 declaring a net income of Rs.5,054,009/- and claimed 10% depreciation allowance qua the hospital building upon the income earned from the hospital, however, the Deputy Commissioner of Income Tax (Assessing Officer) allowed depreciation allowance only to the extent of 5%. Aggrieved, the petitioner filed a departmental appeal which was accepted by the Commissioner of Income Tax (Appeals) [CIT (Appeals)] vide order dated 9.8.2004 and 10% depreciation allowance was allowed. The respondent-department challenged this order before the Income Tax Appellate Tribunal which affirmed the order of the CIT (Appeals). Civil Petition No.2640 of 2016 -: 2 :- However, the reference filed by the respondent before the learned High Court was allowed and it was held vide impugned judgment that the petitioner’s hospital though a building, did not fall within the definition of a “factory” or a “workshop” thus depreciation allowance of 5% as opposed to 10% as earlier held by the Assessing Officer was allowed. 2. Learned counsel for the petitioner, while referring to judgments from the Indian jurisdiction reported as Commissioner of Income Tax Vs. Dr. B. Venkahta Rao (2001 PTD 1124) and Commissioner of Income-tax Vs. Dr. B. Venkata Rao [(1993) 202 ITR 303] argued that a nursing home had been declared a “plant”, thus on the same footing the petitioner’s hospital should be considered a “factory” or “workshop”, entitling the petitioner to 10% depreciation allowance. 3. Heard. In the instant case, we find that as per the provisions of Section 23 read with the Third Schedule of the Income Tax Ordinance, 1979 (the Ordinance) the petitioner is entitled to depreciation allowance upon the income derived from the hospital, however the extent thereof is the moot point and the relevant law in this context reads as under:- “23. Deductions.- (1) In computing the income under the head "Income from business or profession", the following allowances and deductions shall be made, namely:- ⁞ (v) in respect of depreciation including First Year Allowance or Reinvestment Allowance or Industrial Building Allowance of any such building, machinery, plant, furniture or fittings, being the property of the assessee, the allowance admissible under the Third Civil Petition No.2640 of 2016 -: 3 :- Schedule, except depreciation or First Year Allowance on assets given on lease shall be allowed against income from lease rentals only; ⁞ (xxii) ……………………………………………………… THE THIRD SCHEDULE (See Section 23) RULES FOR THE COMPUTATION OF DEPRECIATION ALLOWANCE 1. Allowances for depreciation.- (1) Where, in any income year, any building, machinery, plant or furniture owned by an assessee is used for purposes of any business or profession carried on by him, or in any income year commencing on or after the first day of July, 1982, any machinery or plant is given on lease by the assessee, being a scheduled bank, a financial institution or such modaraba or leasing company as is approved by the Central Board of Revenue for purposes of this Schedule, on such conditions as may be specified, an allowance for depreciation shall be made in computing the profits and gains of the business or profession of the assessee in the manner hereinafter provided. ⁞ (4) ………………………………………………………… 2. Rates of depreciation allowance.- (1) The allowance under rule 1 shall be computed at the rates specified in the Table annexed hereto:- TABLE Class of asset Description Rate per cent of the written down value 1 2 3 BUILDING I Building (not otherwise specified) 5 (general rate) Civil Petition No.2640 of 2016 -: 4 :- II Factory or workshop (excluding godowns and Offices) 10 IIA Residential quarters for labour 10 Section 23 of the Ordinance read with Rule 1 of the Third Schedule to the Ordinance (the Schedule) allows for depreciation allowance with respect to any building, machinery, plant, furniture or fittings, being the property of the assessee, while computing income under the head “income from business or profession”, as provided in the Schedule under which three categories of buildings and their respective percentage rates have been specified, i.e. (i) 5% for a building (not otherwise specified); (ii) 10% for a factory or workshop (excluding godown and offices); and (iii) 10% for residential quarters for labour. A bare reading of the aforesaid provisions makes it clear that the type of building specified in Entry I of the Schedule is of a generic nature, i.e. a building which is not otherwise specified with particularity. However Entries II and IIA of the Schedule are exceptions to Entry I, as they have been otherwise specified with particularity. The effect of this is that from the generic category “buildings” in Entry I for which the general rate of depreciation allowance is 5%, other types of buildings are set apart with particularity, i.e. factory or workshop (excluding godown and offices) and residential quarters for labour, for which a rate of 10% depreciation allowance is provided. Since it is the petitioner’s case that its hospital is not a “building”, but a “factory” or “workshop” under Entry II of the Schedule and thus liable to 10% depreciation allowance, therefore we are restricting ourselves to a discussion of Entries I and II, and not IIA of the Schedule. Here we find it relevant to discuss the ordinary meanings of the terms “building”, “factory” Civil Petition No.2640 of 2016 -: 5 :- and “workshop”, as they have not been defined anywhere in the Ordinance, to determine which category a hospital might fall in. The Concise Oxford Dictionary (New Ed. 1982) defines the aforesaid three terms as follows:- “Building:- permanent fixed thing built for occupation (house, school factory, stable, etc.). Factory:- building(s) and equipment for manufacturing, workshop. Workshop:- room or building in which manufacture is carried on.” Whereas Chambers 21st Century Dictionary (1997 Ed.) defines them as under:- “Building:- a structure with walls and a roof, such as a house. Factory:- a building or buildings with equipment for the large-scale manufacture of goods. Workshop:- a room or building where construction and repairs are carried out.” 4. From the ordinary dictionary meanings, it is clear that a “factory” and “workshop” fall within the definition of a “building”, thus if Entry II did not exist, all buildings, including factories and workshops would fall under Entry I entitling assessees to the general rate of 5% depreciation allowance. However, as mentioned above, Entry II creates an exception to Entry I by providing otherwise for two specific types of buildings, i.e. a factory or workshop (excluding godown and offices) for which the rate of 10% depreciation allowance is to apply. It is settled law that the provisions of a fiscal statute are to be strictly construed and applied, hence a hospital whilst being an enclosed Civil Petition No.2640 of 2016 -: 6 :- structure is undoubtedly a building, however, by no stretch of imagination can it be considered to fall within the definition of a factory or workshop, as it is not a building where goods are manufactured, repaired or assembled. Therefore, the petitioner is only entitled to depreciation allowance at the general rate of 5% instead of 10% as claimed by it. 5. As regards the Indian judgments relied upon by the learned counsel for the petitioner, these judgments are from a foreign jurisdiction and may be relevant in understanding and resolving the issues before us but they have no binding effect upon the Courts in Pakistan. We are of the opinion that they are also distinguishable from the instant case as the provisions of law analysed therein are not pari materia to the law of our country being examined in this case, besides the facts of those cases are entirely different as they pertain to the question of whether a nursing home fell within the purview of “plant” and not a “factory” or “workshop”. 6. In the light of the above, we opine that the view set out by the learned High Court is correct being based upon proper appreciation of the law. No case for interference has been made out. Dismissed accordingly. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 2nd February, 2017 Approved For Reporting Waqas Naseer/*

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 264 OF 2017 (On appeal against the judgment dated 15.12.2016 passed by the Federal Service Tribunal, Islamabad on Appeal No. 3272(R)CS/2012) Muhammad Younis … Petitioner VERSUS Financial Advisor & Chief Accounts Officer, Pakistan Railways, Lahore etc … Respondents For the Petitioner: In person For the Respondents: Hafiz Muhammad Saeed, ASC Mr. Manzoor Malik Moor, A.O. Date of Hearing: 31.01.2018 JUDGMENT FAISAL ARAB, J.- Vide Office Memorandum dated 04.09.2001, Government of Pakistan revised basic pay scales and fringed benefits of all its civil employees. On account of such revision, revised pension scheme was also introduced under the same Office Memorandum whereunder option was given to the employees either to draw pay in the existing basic pay scales that were lastly revised in 1994 or under the new revised scales. The petitioner, an employee of Pakistan Railways, is one of those employees who opted for pay scales that were revised in 1994. After exercising such option, petitioner retired from service on 31.03.2002 upon attaining the age of superannuation. CIVIL PETITION NO. 264 OF 2017 2 2. The dispute in these proceedings relates to quantum of increase that was made in pensions under the Office Memorandum No. F.4(I)-Reg.6/2009 dated 13.07.2009 and Office Memorandum No. F.4(1)-Reg.6/2010/721 dated 05.07.2010 whereby the pension was increased with effect from 01.07.2009 and 01.07.2010 respectively. In terms of both these Office Memorandums the pensioners who retired before 01.12.2001 were entitled to an increase of 20% whereas those who retired after 01.12.2001 were entitled to a raise of 15%. Considering the fixation of two different rates to be discriminatory, the petitioner agitated the matter seeking increase to the extent of 20% as was being granted to pensioners who retired on or before 01.12.2001. When denied of such relief, the petitioner appealed to the Federal Service Tribunal. The Service Tribunal vide impugned judgment held that as the petitioner had already been granted increase of 5% under Office Memorandum dated 04.09.2001 read with Office Memorandum No. F.1(15)Imp/2001 dated 13.05.2002 and the increases granted vide Office Memorandums dated 13.07.2009 and 05.10.2010 were only to the extent of 15%, he is not entitled to any further increase. Against such decision, present petition has been filed. 3. The case of the department also was that the petitioner had unduly received 5% increase under Office Memorandum dated 04.09.2001 to which he was not entitled. The petitioner who appears in person states that the 5% increase that was initially granted to those pensioners who retired on or before 01.12.2001 vide Office Memorandums dated 04.09.2001, the same benefit of 5% increase was extended to those pensioners as well who retired CIVIL PETITION NO. 264 OF 2017 3 after 01.12.2001 in terms of Office Memorandum dated 13.05.2002 and such increase granted to him had nothing to do with the subsequent increases in pension made from time to time under various Office Memorandums. In order to establish that 5% increase under 2001 Office Memorandum had nothing to do with subsequent increases in pension, he referred to sub paragraph 3 of paragraph 1 of Office Memorandum dated 13.05.2002, which reads “1(iii) The employees who opted for 1994 pay scales and retired before or after 1.12.2001 shall be entitled to 5% increase in pension.” He stated that the subject of Office Memorandum dated 13.05.2002 was removal of anomalies that were contained in Office Memorandum No. F.1(5)Imp/2001 dated 04.09.2001. He then read paragraph 16(g)(iii) of the Office Memorandum dated 04.09.2001 and explained that under this paragraph, an increase of 5% was allowed to only those pensioners who retired upto i.e. 01.12.2001 and not to those like him who retired after 01.12.2001. However, in terms of sub paragraph 3 of Office Memorandum dated 13.05.2002 titled as ‘removal of anomalies’, benefit of 5% increase was extended to those pensioners as well who retired after 01.12.2001. Hence 5% increase under Office Memorandum dated 04.09.2001 read with Office Memorandum dated 13.05.2002 was entitlement of the petitioner independent of all increases that were made under Office Memorandums issued thereafter from time to time. Thus the stand of the respondent that 5% increase was unduly received by him under Office Memorandum dated 04.09.2001 is not tenable. 4. In terms of Office Memorandums dated 13.07.2009 and 05.07.2010, those who retired on or before 01.12.2001 were CIVIL PETITION NO. 264 OF 2017 4 given 20% rise in pension whereas those who retired thereafter were given only 15% rise. As to the fixation of two different rates of increase in pension for pensioners who had retired on different dates, the case of the petitioner is that there should not be two different rates of increase and all pensioners should be given the same percentage of increase in pension irrespective of their date of retirement. Different rates of increase have been called in question on the ground that the Office Memorandums of 2009 and 2010 are discriminatory being violative of Article 25 of the Constitution of Pakistan. 5. In the case of Federation of Pakistan Vs. I.A. Sherwani and others (2005 SCMR 292) it was held by this Court that the distinction between ‘old pensioners’ and ‘new pensioners’ is necessary as the quantum of pension is determined keeping in view the difference of pay in different time periods. The relevant portion from paragraph No. 13 of the judgment is reproduced below:- “It is noted that, while in service the employees of any grade all the time do not get the same pray. For example, an employee, who enters into service earlier and get increments, his salary must be more than an employee, who joined service in the same grade after a year of the earlier employee. While serving-in the same grade, the employees get different pay, how they, could ask for computation of their pension in violation of Pension Rules in force on the date of retirement of civil servants. Admittedly, there is no contract between the pensioners and the Government regarding terms/conditions relating to the change of rate of pension in future, as such, the distinction between old pensioners and new pensioners could not be undone and each pensioner would get pay according to his entitlement under the law and this could not be termed as discriminatory. Pension is regarded as wealth and inequality in its distribution does not render it un-Islamic nor different rates could be CIVIL PETITION NO. 264 OF 2017 5 termed as discriminatory. The quantum of pension is determined having taken into consideration; (1) the length of qualifying service (2) emoluments drawn and (3) as per rates prescribed in relevant rules. The concept of "Adl" and "Ehsan" as enunciated in Islamic Principles is not contrary to the rules of pension, as applicable to the retired civil servants of Pakistan.” 6. We are not impressed by the argument that there is discrimination as there is bifurcation between pensioners who retired on or before 01.12.2001 and those who retired thereafter. The same was considered necessary in order to maintain a uniform rise in pension due to the different rate of salaries the ex- employees were drawing at the time of their retirement. Hence keeping in sight the above judgment, we are of the opinion that the petitioner is entitled only to a 15% increase in pension as stipulated in the Office Memorandums of 2009 and 2010 based on reasonable classification. This petition is, therefore, dismissed. JUDGE JUDGE Islamabad, the Announced on ____________ by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE SHAHID WAHEED CIVIL PETITION NO. 2658 OF 2019 (Against the judgment dated 04.04.2019 of the Lahore High Court, Multan Bench, Multan passed in C.R.No.753-D/2009) Shahray Khan (decd.) through LRs etc. …Petitioner(s) Versus Qadir Bakhsh (decd.) through LRs etc. …Respondent(s) For the Petitioner(s): Mr. Zulfikar Khalid Maluka, ASC For the Respondent(s): Not represented Date of Hearing: 17.11.2022 ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have called in question the vires of judgment dated 04.04.2019 passed by the learned Lahore High Court, Multan Bench, whereby the Civil Revision filed by the petitioners was dismissed and the orders of the learned two Courts below were upheld. 2. Briefly stated the facts of the matter are that one Miran Khan was owner in possession of a piece of agricultural land measuring 532 kanals 7 marlas situated in Tehsil Mailsi, District Multan. The said Miran died issueless in the year 1929. The suit property was mutated in favour of his wife Mst. Aisha, his widow, vide mutation No. 51 attested on 14.02.1929 as a lifetime owner having no right to further alienate the property. However, Mst. Aisha further transferred the said property in favour of her relatives i.e. brothers, cousins and nephews vide mutation CIVIL PETITION NO.2658 OF 2019 -: 2 :- No. 59 dated 31.10.1931 on the pretext that she had to pay a loan of her husband, which was satisfied by them. This led to filing of a civil suit by the predecessor-in-interest of the respondents namely Qadir Bakhsh claiming himself to be the collateral/reversioner of Miran Khan on the ground that it was a life estate and Mst. Aisha had no authority to further alienate the property. The said suit was decreed vide judgment and decree dated 02.01.1940. After the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the limited ownership of Mst. Aisha ceased to have effect. Thereafter, the predecessor-in-interest of the respondents Qadir Bakhsh filed yet another civil suit claiming ownership in the estate of Miran Khan to the extent of 3/4th share as collateral/reversioner. The suit was initially filed against Mst. Aisha but subsequently, her relatives being transferees of the land were also impleaded as defendants. Two real sisters of Miran Khan namely Mst. Lakhan and Mst. Azmat were also impleaded in the suit on 30.01.1978 & 29.10.1980 respectively. The suit filed by Qadir Bakhsh was contested by the defendants. Ultimately vide judgment dated 17.06.1981, the learned Trial Court while dismissing the suit concluded that deceased Miran Khan was survived by his widow Mst. Aisha Bibi, his mother Mst. Jannat and two sisters namely Mst. Lakhan and Mst. Azmat, therefore, his estate devolved upon the said sharers and nothing was left to inherit by Qadir Bakhsh. The learned Trial Court also held that Mst. Lakhan and Mst. Azmat, defendants, are entitled to inherit 8/13 share in the estate of Miran Khan as sisters but no decree was passed in their favour. Against the said judgment, Qadir Bakhsh as also the sisters of Miran Khan filed appeals before the Appellate Court. The learned Appellate Court vide judgment dated 07.10.1984, dismissed the appeal of Qadir Bakhsh and accepted the appeal of sisters of Miran Khan and held them entitled to inherit 8/13 share, which becomes 2/3rd of the estate of deceased Miran Khan. Being aggrieved by the judgment of the Appellate Court, the relatives of Mst. Aisha being defendants No. 2 to 13 filed RSA No. 14/1985 before the High Court, which was ultimately remitted back to the learned Appellate Court to decide all the appeals afresh in accordance with law. The learned Appellate Court vide its judgment dated 30.06.2009 CIVIL PETITION NO.2658 OF 2019 -: 3 :- while maintaining the judgment of the learned Trial Court, dismissed the appeal filed by Qadir Bakhsh while the appeal filed by Mst. Lakhan Mai and Mst. Azmat Mai was accepted. The learned High Court vide impugned judgment upheld the concurrent findings of the learned two courts below. Hence, this petition seeking leave to appeal. 3. At the very outset, learned counsel for the petitioners contended that the mutation No. 59 was affected on the basis of sale consideration and necessity as Mst. Aisha had to pay a debt, which was satisfied by her brothers and nephews and in lieu thereof, she alienated the property to them. Contends that this fact was admitted by Mst. Aisha while appearing in the witness box and such assertion was not rebutted by the other side. Contends that the concurrent judgments of the courts below are not maintainable on the basis of law and facts, hence, the impugned judgment may be set at naught. 4. We have heard learned counsel for the petitioners at some length and have perused the impugned judgments as also the evidence available on the record. It is an admitted fact that one Miran Khan died while leaving behind agricultural land measuring 532 kanals 7 marlas as owner in possession in the year 1929. As the said Miran Khan was issueless, the entire estate was mutated in favour of Mst. Aisha, being his widow, vide mutation No. 51 attested on 14.02.1929. She inherited the property with title as lifetime owner without having the right to further alienate the said landed property. However, she alienated a portion of the landed property to his relatives vide mutation No. 59 attested on 31.10.1931 on the pretext that her late husband had borrowed a loan from Hindu Sahokars, which was still unpaid, therefore, as her relatives satisfied the debt, which compelled her to further alienate the land under compulsion in defiance of the embargo placed while inheriting the landed property. This prompted Qadir Bakhsh, predecessor-in-interest of the respondents to file a civil suit on the ground that the suit property was a life estate and Mst. Aisha had no authority to further alienate the same. He claimed that the transfer of property made by Mst. Aisha in favour of her relatives was void qua his CIVIL PETITION NO.2658 OF 2019 -: 4 :- right. This suit was decreed vide judgment and decree dated 02.01.1940. After the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the limited ownership of Mst. Aisha ceased to have effect. Thereafter, said Qadir Bakhsh filed another civil suit against Mst. Aisha and claimed ownership in the estate of Miran Khan to the extent of 3/4th share as collateral/reversioner. In this suit he did not implead the transferees i.e. the sisters of the deceased Miran Khan namely Mst. Lakhan and Mst. Azmat. However, at a later stage, Mst. Lakhan and Mst. Azmat being real sisters of Miran Khan were also impleaded as party on 30.01.1978 and 29.10.1980. The learned Trial Court vide its judgment dated 17.06.1981 dismissed the suit by holding that the estate of Miran Khan is to be devolved upon his widow, mother and two sisters as under:- (i) Mst. Aisha, widow 3/13 (1/4th share) (ii) Mst. Lakhan and Mst. Azmat, sisters 8/13 (2/3rd share) (iii) Mst. Jannat Bibi, mother 2/13 (1/6th share) 5. However, the learned Trial Court did not pass any decree in favour of the sisters of Miran Khan. Against the said judgment, Qadir Bakhsh as also the sisters of Miran Khan filed appeals before the Appellate Court. Vide judgment dated 07.10.1984, the learned Appellate Court while maintaining the judgment of the Trial Court, dismissed the appeal of Qadir Bakhsh and accepted the appeal of Mst. Lakhan and Mst. Azmat. The record reflects that pursuant to a Regular Second Appeal filed by the relatives of Mst. Aisha, the learned High Court, remanded the matter back to the learned Appellate Court to decide the appeals filed by Qadir Bakhsh and sisters of Miran Khan afresh. In post-remand proceedings, the learned Appellate Court maintained the judgment of the Trial Court, which was further concurred by the learned High Court. The main argument of the learned counsel for the petitioners is that Miran Khan died without settling a loan payable by him to the Hindu Sahukar, which was ultimately paid by the relatives of his wife Mst. Aisha and in lieu of the said discharging of liability, she was compelled to make transfer of the suit property in their name. This assertion of the learned counsel is beyond the contents of the record surfaced during the proceedings before this Court. The statements CIVIL PETITION NO.2658 OF 2019 -: 5 :- of Qadir Bakhsh, plaintiff, and Mst. Aisha (DW-1) though stated this very aspect of the case but the same do not contain the amount of loan extended to the deceased husband of Mst. Aisha and the part paid by each of the relative to discharge the liability, which seems to us the most material aspect of the case. Even otherwise, a bare reading of the statements of both the plaintiff and DW-1 shows that this very ground has been expressed in generalize manner without specifying any particulars of the said transaction. Even Mst. Aisha could not disclose exact amount of the loan and the amount, which was considered for selling out the portion of the landed property. There is no denial to this fact that Mst. Aisha being limited owner of the suit property was not competent to transfer the portion of the landed property to her relatives. This very aspect of the case was adjudicated by each forum and was discarded, hence, there are concurrent findings recorded by each court regarding this aspect of the matter. The learned courts below have rightly held that under the law, Mst. Aisha, widow, Mst. Jannat Bibi, mother, and two sisters namely Mst. Lakhan and Mst. Azmat Bibi of Miran Khan excluded any other heir from inheritance and they were entitled to the decree of inheritance according to their share of inheritance. There are concurrent findings of fact recorded by the learned courts below. This Court in Muhammad Shafi and others Vs. Sultan (2007 SCMR 1602) while relying on case law from Indian as well as from the Pakistani jurisdiction has candidly held that this Court could not go behind concurrent findings of fact “unless it can be shown that the finding on the face of it is against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible.” Learned counsel for the petitioners has not been able to convince us that there is any misreading or non-reading of evidence or any legal or jurisdictional defect or flaw in the impugned judgment. Consequently, we do not find any reason or justification to interfere with the impugned judgment. This petition having CIVIL PETITION NO.2658 OF 2019 -: 6 :- no merit is accordingly dismissed and leave to appeal is refused. The above are the detailed reasons of our short order of even date. JUDGE JUDGE Islamabad, the 17th of November, 2022 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Civil Petition No. 2661 of 2020 (Against the order dated 09.10.2020 passed by the High Court of Sindh at Karachi in C.P. No.D 5564/2017) Sikandar Ali Qureshi …Petitioner(s) Versus Chairman NAB Islamabad & others …Respondent(s) For the Petitioner(s): Mr. Muhammad Amjad Iqbal Qureshi, ASC Mr. Rifaqat Hussain Shah, AOR For the Respondent(s): N.R. Date of hearing: 10.11.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Petitioner was admitted to bail in anticipation to his arrest in a NAB reference by the High Court of Sindh way back in the year 2017, however, the protection was recalled vide impugned order dated 09.10.2020 by the High Court on his having obstinately obstructed the conclusion of trial, otherwise at its fag-end. The learned Judges also noted with disdain petitioner’s unbecoming attitude towards the learned Presiding Judge of the Accountability Court, a young lady, attempting conscientiously to proceed with the trial. Petitioner’s appalling conduct as reported by the learned Judge has appropriately been visited by the learned Judges of High Court of Sindh as he deserved no less. Petition fails. Leave is declined. The petitioner is directed to surrender himself before the law; Criminal Petition No. 2661 of 2020 2 in the event of default, he shall be taken into custody so as to face the trial. Judge Judge Judge Islamabad, the 10th November, 2020 Not approved for reporting Azmat/-

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{'id': 'C.P.L.A.2661_2020.pdf', 'url': ''}

IN THE SUREME COURT OF PAKISTAN (Appellate Jurisdiction) Present Mr. Justice Mian Saqib Nisar, HCJ Mr. Justice Umar Ata Bandial Mr. Justice Ijaz ul Ahsan CIVIL PETITIONS NO.2693-2694 OF 2018 (On appeal from the judgment/order dated 03.07.2018 passed by High Court of Balochistan, Quetta in CP.823-824 of 2018) Sardar Yar Muhammad Rind … … Petitioner. (in both cases) Versus The Election Tribunal Balochistan, Quetta and others … … Respondents (in both cases) Taj Muhammad Raisani … … Respondent No.4 (in CP.2693/2018) Ghulam Haider … … Respondent No.4 (in CP.2694/2018) For the petitioner : Sardar M. Latif Khan Khosa, Sr. ASC. (in both cases ) Ch. Akhtar Ali, AOR. For respondent No.4 : Mr. M. Amir Nawaz Rana, ASC. (in both cases) For ECP. : Mr. M. Arshad, DG (Law), ECP. (in both cases) Date of hearing : 19.09.2018. O R D E R UMAR ATA BANDIAL, J. The petitioner is a returned candidate in the elections of constituency No.PB-17 Kachhi of the Balochistan Provincial Assembly and NA-260 Kachhi of the National Assembly. His nomination papers were rejected by the Returning Officers of both constituencies on 19.06.2018 on different grounds. The Appellate Tribunal (High Court) vide consolidated judgment dated 26.06.2018 upheld his CPs.2693-2694 of 2018 2 ineligibility to contest the elections for, inter alia, lacking the qualifications laid down under Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”). The basis of this finding is that in the general elections of 2008 in which the petitioner was a returned candidate from PB-31 Bolan in the Balochistan Provincial Assembly, he had claimed to be a holder of Sanad of Shahad-ul-Aalmia issued by the Jaamia Anwar-ul- Alum, Sukkar. However, in the next general elections of 2013, the petitioner disclosed his educational qualification as Intermediate. The petitioner’s failure to disclose his Sanad of Shahad-ul-Aalmia was alleged by the objector/respondent No.4 to be concealment and an admission of a false statement made in his nomination papers in the year 2008. The petitioner was thereby guilty of being not “honest” on the criteria laid down in Article 62(1)(f) of the Constitution. Accordingly, he was disqualified to contest the elections. This view has been considered and endorsed by the learned Division Bench of the High Court vide its impugned consolidated judgment dated 03.07.2018 passed in constitutional petitions filed by the petitioner to challenge the judgment of the learned Appellate Tribunal dated 26.06.2018 and the original orders by the respective Returning Officers dated 19.06.2018. Hence these petitions for leave to appeal. 2. The case law relied by both the learned Appellate Tribunal and the learned Division Bench of the High Court, namely, Muhammad Rizwan Gill vs. Nadia Aziz (PLD 2010 SC 828), Abdul Ghafoor Lehri vs. Returning Officer, PB-29 Naseerabad-II (2013 SCMR 1271) and Iftikhar Ahmad Khan Bar vs. Chief Election Commissioner Islamabad & others (PLD 2010 SC 817) deal with the use of bogus, fake and forged documents claimed by delinquent election candidates to establish their educational CPs.2693-2694 of 2018 3 credentials. The present case does not involve a fake or bogus degree therefore none of the said precedents apply. In two of the above-cited cases, namely, Muhammad Rizwan Gill and Abdul Ghafoor Lehri, documentary and oral evidence was recorded to arrive at the adverse finding against the returned candidate. No evidence was recorded in the instant case to sustain the finding against the petitioner. Therefore, the rule laid down in the judgments relied does not apply here. Article 62(1)(f) of the Constitution requires that the disqualification of an election candidate must be founded on a declaration by a Court of law that such person is “not honest.” Any judicial declaration must necessarily be based on evidence, oral or documentary. A perusal of the judgment of the learned Appellate Tribunal and the impugned judgment by the learned Division Bench of the High Court do not refer to any positive evidence on the record to establish either that the Sanad of Shahad-ul-Aalmia claimed by the petitioner in his nomination papers in 2008 is bogus, forged or fake or that the petitioner referred to the same knowingly and deliberately as being equivalent to a graduate or postgraduate degree. The issue that the Sanad of Shahad-ul- Aalmia held by the petitioner was not equivalent to a graduate or postgraduate degree has been decided affirmatively by the learned Appellate Tribunal and the learned High Court solely on the basis that such fact is undisputed by the petitioner. That omission does not constitute an admission in order to have evidentiary value. It has been repeatedly held by this Court that an admission should be unambiguous, unqualified and specific. [Ref: Amir Bibi vs. Muhammad Khurshid (2003 SCMR 1261) and Macdonald Layton & Co. Pak Ltd. vs. Uzin Export Import Foreign Trade Co. (1996 SCMR 696)]. Reference in this regard is also made to Muhammad Siddique CPs.2693-2694 of 2018 4 vs. Faiz Mai (PLD 2012 SC 211) wherein this Court held that admission must be categorical, definite and unambiguous in nature and that a mere non- denial of a fact in written statement by the defendant, about a fact which is not specifically pleaded in the plaint, cannot by stretch of any legal principle be construed to be an ‘admission’ in terms of law. As already noted above, there is neither any allegation nor any evidence to show that the petitioner’s sanad was fake. There is also no evidence on the record to indicate the constitutional ingredient of “not honest” in Article 62(1)(f) ibid. Equally, there is nothing to show that the petitioner consciously declared his sanad knowing that it is not equivalent to a graduate or higher degree. 3. Disqualification under Article 62(1)(f) of the Constitution entails a life time bar on eligibility to contest elections as held by this Court in Sami Ullah Baloch vs. Abdul Karim Nousherwani (PLD 2018 SC 405). Lack of honesty of the petitioner appears to have been presumed by the impugned judgments whereas in the context of Article 62(1)(f) of the Constitution, in the case of Mehmood Akhtar Naqvi vs. Federation of Pakistan (PLD 2012 SC 1089) this Court has recognised that the element of dishonesty should be present in candidate’s conduct which can be deduced from his overt acts that reflect deliberate false statement, cheatful involvement in the use of unfair means and dishonesty. Operative para therefrom is reproduced herein below: “22. … A person who indulges into unfair means in procuring his educational qualifications and is also found guilty by the Disciplinary Committee, which is the only authority competent to inquire into the matters of such allegations against candidates appearing in the examination of the said University, does not deserve to claim to be an honest, righteous CPs.2693-2694 of 2018 5 or Ameen person. … The spirit with which the words sagacious, righteous, non profligate, honest and Ameen have been used by the Constitution of Islamic Republic of Pakistan, 1973 for the eligibility of the candidates contesting the elections of Members of National or Provincial Assembly cannot be allowed to be frustrated if persons who secure their educational documents through unfair means and are found guilty of such a condemnable act by [the] competent authority are allowed to be given any entry into the doors of National or Provincial Assemblies [of] our country. The respondent No.1 not only is found guilty of a dishonest or cheatful involvement in the use of unfair means in procuring his B.A./degree/results from the University of Punjab but also made deliberately false statement before this Tribunal. …” [emphasis supplied] More recently, the element of dishonesty to incur disqualification under Article 62(1)(f) of the Constitution is examined by this Court in Muhammad Hanif Abbasi vs. Imran Khan Niazi (PLD 2018 SC 189) and it is held that: “100. … It cannot, therefore, be contended that dishonesty is attributed in the said judgment without reference to any alleged design, intention, scheme, background or impropriety. Consequently, to our minds the larger Bench has not expunged the requirement of establishing the “dishonesty” of conduct of an aspirant or incumbent member of a Constitutional Legislature in order for the disqualification under Article 62(1)(f) of the Constitution and Section 99(f) of the ROPA to be attracted. …” [emphasis supplied] CPs.2693-2694 of 2018 6 The same view is expressed in the judgment of this Court titled Hassan Nawaz vs. Muhammad Ayub (PLD 2017 SC 70) in para-17 thereof. 4. The impugned judgments by the learned High Court have applied the bar of Article 62(1)(f) of the Constitution upon the petitioner without giving a finding that his declaration of Sanad of Shahad-ul-Aalmia in his nomination papers filed in the year 2008 was a dishonest and deceitful action to meet the condition of graduate qualification in order to become eligible for contesting the general elections. Apart from lacking such finding, the discussion in the impugned judgment is at best based upon a presumption and not on any finding or deduction made on the basis of any material qualifying as evidence. In the circumstances, the presumption drawn by the impugned judgments is conjectural and cannot be made the ground for disqualifying the petitioner forever from contesting for or holding an office in the Constitutional Legislatures of the country. For the foregoing reasons, both these petitions are converted into appeals and allowed and the impugned judgments dated 03.07.2018, 26.06.2018 and 19.06.2018 passed by the learned High Court, Appellate Tribunal and the Returning Officers, respectively, are set aside. Chief Justice Judge Judge Announced in Court on 05.12.2018. Judge. APPROVED FOR REPORTING. Irshad Hussain /*

{'id': 'C.P.L.A.2693_2018.pdf', 'url': ''}

{'id': 'C.P.L.A.2693_2018.pdf', 'url': ''}

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

{'id': 'C.P.L.A.272_2016.pdf', 'url': ''}

{'id': 'C.P.L.A.272_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Qazi Muhammad Amin Ahmed Civil Petition No.2732-L of 2016 (Against the judgment dated 9.6.2016 passed by the Lahore High Court Multan Bench Multan in T.R. No.26/2013) Commissioner Inland Revenue Multan …Petitioner(s) Versus Sh. Muhammad Amin Arshad …Respondent(s) For the Petitioner(s): Ch. Muhammad Shakil, ASC For the Respondent(s): Sheikh Zafar-ul-Islam, ASC Date of hearing: 07.01.2021. ORDER Qazi Muhammad Amin Ahmed, J.- The respondent, a Commission Agent/Broker, declared an income of Rs.34,42,374/- on account of supplies to M/s Shujabad Oil Mills Pvt. Ltd; he assessed his income tax as Rs.3,42,437/-. The Deputy Commissioner Inland Revenue, however, detected receipt of payments through bank cheques far beyond the declared amount, running to the tune of Rs.56,12,36,365/- to set in motion through notice dated 24.9.2012, proceedings under sections 122(5)(9) and 111(1) of the Income Tax Ordinance, 2001 (hereinafter referred to as “the Ordinance”), considering the detection as definite information and pursuant to a show cause notice determined tax liability vide order dated 18.2.2013 as under: Income determined u/s 39 Rs.56,12,36,365/- Income Tax Payable @ 25 % Rs.14,03,09,091/- Income Tax Deducted as FTR as per Block A Rs.3,42,437/- Civil Petition No.2732-L of 2016 2 Appeal filed by the respondent before the Commissioner Inland Revenue (Appeals) Multan met with no better fate vide order dated 18.3.2013, however, reversed by the Appellate Tribunal Inland Revenue Lahore Bench Multan (Camp at Multan) vide order dated 16.05.2013, assailed by the Department through Tax Reference No.26 of 2013. The High Court declined to answer the reference in affirmative, vide impugned order dated 9.6.2016, on the ground that in the absence of “any definite information” that too without confrontation to the assessee involving a factual controversy, the Department could not invoke the advisory jurisdiction. 2. Learned counsel for the petitioner contends that the learned High Court failed to consider facts of the case in their contextual backdrop that unambiguously constituted “definite information” within the contemplation of section 122(5) of the Ordinance, duly confirmed by documented transactions through banking channel, additionally verified by no other than the recipient i.e. M/s Shujabad Oil Mills Pvt. Ltd. The impugned order being slipshod calls for interference, concluded the learned counsel. Learned counsel for the respondent has, however, defended the view taken by the Appellate Tribunal Inland Revenue, by maintaining that refusal by the High Court to decline interference being well within the remit of law did not admit space for a probe into factual controversy. 3. Heard. Record perused. 4. Definite information within the contemplation of section 122(5) of the Ordinance contemplates an assessment in respect of a relevant tax year by the Commissioner, upon satisfaction of the conditions: i. any income chargeable to tax has escaped assessment; or ii. total income has been under-assessed, or assessed at too low a rate, or has been the subject of excessive relief or refund; or iii. any amount under a head of income has been misclassified. Position taken by the department has a substance inasmuch as the respondent did not deny payments, the modes thereof and product wise quantum of the purchases. Learned counsel for the respondent failed to substantiate his contention qua business activities with M/s Shujabaad Oil Mills Private Limited in the light of banking transactions. The Civil Petition No.2732-L of 2016 3 department has rightly determined the income of the respondent under section 39 of the Ordinance along with income tax chargeable and penalty consequent thereupon under section 182(2) thereof. The learned High Court failed to appreciate the law on the subject and passed the impugned order in a slipshod manner; the same, therefore, cannot sustain; the orders passed by the Commissioner Inland Revenue (Appeals) and the Deputy Commissioner Inland Revenue being well within the remit of law are restored. Petition is converted into appeal and same is allowed. Judge Judge Islamabad, the 7th January, 2021 Not approved for reporting Ghulam Raza/-

{'id': 'C.P.L.A.2732-L_2016.pdf', 'url': ''}

{'id': 'C.P.L.A.2732-L_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITION NO. 279-P OF 2015 (On appeal against the judgment dated 31.03.2015 passed by the Peshawar High Court, Peshawar in Writ Petition No. 615-P/2015) Government of Khyber Pakhtunkhwa through Chief Secretary etc … Petitioners VERSUS Muhammad Khurshid … Respondent For the Petitioners: Mr. Qasim Wadood, Addl. A.G. Mr. Khial Roze, Inspector For the Respondent (1): Mr. Imtiaz Ahmed, ASC Mr. Mehmood A. Sheikh, AOR For Respondents (2-4): Nemo Date of Hearing: 14.12.2020 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition, the petitioner called in question the vires of the impugned order dated 31.03.2015 passed by the Peshawar High Court, Peshawar, whereby the Writ Petition filed by the respondent No.1 was allowed. 2. Briefly stated the facts of the matter are that for the construction of Police Station Saro Shah, Tehsil Takht Bai, District Mardan, in the first instance land belonging to Agricultural and Livestock Department was acquired vide notification dated 06.04.2010. However, an objection was raised by the Agricultural Civil Petition No. 279-P/2015 2 & Livestock Department that the land is being used for public purpose, hence, on the basis of said consideration, the notification dated 06.04.2014 was withdrawn on 06.06.2014. Thereafter, another property owned by respondent Nos. 2 to 4 was acquired vide notification dated 09.09.2014 but subsequently, the same was also de-notified on 10.11.2014 for the reasons best known to the petitioner. Ultimately, the land belonging to respondent No. 1 measuring 23 kanal 5 marla bearing Khasra No. 492 situated at Mouza Narri, Tehsil Takht Bai, District Mardan was notified under Section 4 of the Land Acquisition Act, 1894. The respondent No. 1 being aggrieved by the notification issued by the Collector filed constitution petition before the Peshawar High Court, Peshawar. The learned High Court vide judgment dated 31.03.2015 allowed the constitution petition and the notification for acquiring the land of the respondent along with de-notification dated 10.11.2014 were set aside and the earlier notification dated 09.09.2014, whereby the land of respondent No. 2 to 4 was acquired, was restored. Hence, this petition seeking leave to appeal. 3. Learned Additional Advocate General inter alia contended that the impugned judgment suffers from material illegality and the same is factually incorrect; that the learned High Court has not properly exercised its jurisdiction under Article 199 of the Constitution; that the land was acquired for public purpose and the same cannot be declared as tainted with mala fide; that the High Court has passed observations against the persons, who were not even party to the proceedings and that the impugned judgment is liable to set aside. Civil Petition No. 279-P/2015 3 4. Learned counsel for the respondent No. 1, on the other hand, defended the impugned judgment. He contended that the notification of acquisition of land of the respondent is mala fide / arbitrary; that no reason was given for de-notifying the earlier notification for acquisition of land and the same was declared that it was issued due to the influence of an ex-Parliamentarian; that the respondent’s livelihood exclusively depends upon the proceeds from the land, which was acquired vide notification dated 10.11.2014; that one Saeed Wahab had himself offered his land but his request was not considered. 5. We have heard learned counsel for the petitioner and respondent No. 1 at some length and have gone through the case file. 6. The learned High Court while allowing the writ petition filed by the respondent has mainly relied upon the element of mala fides on the part of the acquiring department. The main stay of the learned High Court was that due to the influence of a ex- Parliamentarian, the earlier notification dated 09.09.2014 was de- notified on 10.11.2014 and the land belonging to respondent No. 1 was notified. We have minutely perused the entire record. The aspect of mala fide as made basis for accepting the constitution petition is squarely missing in the proceedings prior to filing of the constitution petition before the High Court. We could not find any material to substantiate the said aspect, which was made basis being the solitary consideration by the learned High Court while allowing the constitution petition. We are afraid to note that the element of alleged mala fide on the part of acquiring authority is also without any legal foundation. According to Preamble of the Civil Petition No. 279-P/2015 4 Land Acquisition Act, 1894, it was enacted “to amend the law for the acquisition of land for public purposes and for Companies.” Section 4 of the said Act, reads as follows:- “4. (1) Whenever it appears to the Collector of the District that land in any locality is needed or is likely to be needed for any public purpose or for a Company, a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. (2) Thereupon it shall be lawful for any officer, either generally or specially authorized by [the Collector of the District] in this behalf, and for his servants and workmen…………….” 7. The plain reading of the Preamble and the aforesaid Section clearly shows that the acquiring authority is fully competent to issue notification if the land is being acquired for public purpose. However, it is true that if mere said selection of land is based on extraneous considerations or undue influence then it may be objected by the affected owner. In this respect, the impugned judgment is inadequate in providing/disclosing this aspect of alleged mala fide against the petitioner department. The learned High Court restored the notification dated 09.09.2014 whereby land of the respondent Nos. 2 to 4 was ordered to be acquired without issuing any notice to them. Any proceeding arising out of the equity cannot be decided without providing opportunity of hearing. The learned High Court ought to have followed the principle of audi alteram partem and due process, which are basis of administration of justice, specially when any Civil Petition No. 279-P/2015 5 order, if passed, might affect the rights of the entity not party to the proceedings. The respondent Nos. 2 to 4 have already moved an application under Section 12(2) CPC before the Peshawar High Court, which according to respondent’s counsel is still pending adjudication. 7. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned judgment and remand the case back to the learned High Court for a decision afresh after affording opportunity of hearing to all concerned strictly in accordance with law. JUDGE JUDGE JUDGE Islamabad, the 14th of December, 2020 Approved For Reporting Khurram

{'id': 'C.P.L.A.279-P_2015.pdf', 'url': ''}

{'id': 'C.P.L.A.279-P_2015.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) Present: Mr. Justice Sh. Azmat Saeed Mr. Justice Ijaz ul Ahsan Mr. Justice Munib Akhtar CIVIL PETITION NO.2814 OF 2018 (On appeal from the judgment dated 5.7.2018 passed by the Lahore High Court, Lahore in W.P.No.223299/18) Waseem Zafar Jutt …Petitioner (s) Vs. Mian Muhammad Amjad Joya etc. …Respondent (s) For the Petitioner (s) : Mr. Abdul Ghaffar, ASC Ch. Akhtar Ali, AOR For Respondent No.1 : Mr. Muhammad Munir Peracha, ASC Date of hearing : 19.07.2018. ORDER SH. AZMAT SAEED, J.- In the instant case the nomination papers of the private respondent candidate were accepted. The petitioner who is also a candidate, filed an appeal before the learned Appellate Tribunal, which was rejected on the ground of non-maintainability, which order was maintained in the Constitution Petition by way of the impugned order dated 5.7.2018. CP 2814/18 2 2. It is the case of the Petitioner that in terms of Section 63 of the Elections Act, 2017, an appeal can be filed by a candidate against acceptance of the Nomination Papers of an opposing candidate and the fora below have misconstrued the law. The learned counsel for the Respondent has contended that even otherwise the Constitutional Petition filed by the Petitioner was not maintainable, more particularly, in view of Article 225 of the Constitution of the Islamic Republic of Pakistan, 1973. 3. Leave to appeal is granted, inter alia, to consider the aforementioned questions. JUDGE JUDGE JUDGE Islamabad, the 19th July, 2018 Not Approved For Reporting Nisar/*

{'id': 'C.P.L.A.2814_2018.pdf', 'url': ''}

{'id': 'C.P.L.A.2814_2018.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, C.J. MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITION NO. 283-K OF 2020 (On appeal against the judgment dated 11.03.2020 passed by the High Court of Sindh, Karachi in Constitutional Petition Nos. D-5659 & D-3597 of 2018) Muhammad Sajjad …Petitioner(s) VERSUS Federation of Pakistan and others …Respondent(s) For the Petitioner(s): Mr. Muhammad Akbar Awan, ASC (through video link from Karachi) For the Respondent(s): Not represented Date of Hearing: 08.03.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the judgment dated 11.03.2020 passed by the High Court of Sindh, Karachi, whereby the Constitutional Petition filed by him, challenging the vires of Rule 5(1) of the Cantonment Servants Rules, 1954, under which the competent authority had transferred him, was dismissed. 2. Briefly stated the facts of the matter are that the petitioner was appointed as Sanitary Inspector (BPS-10) in the Cantonment Board, Pannu Aqil vide order dated 23.01.2010 and purportedly he was transferred to Karachi subsequently. His services were transferred from Cantonment Board Korangi Creek, Karachi, to Cantonment Board D.I. Khan vide order dated 07.11.2013. Being aggrieved by the transfer order, the petitioner along with other similarly placed employees challenged the transfer order by filing Constitutional Petitions No. D-4790/2013 etc titled as “Muhammad Sajjad Vs. Federation of Pakistan” before the High Court of Sindh, Karachi, on the ground that their posts are non- Civil Petition No.283-K of 2020 2 transferable pursuant to Service Policy framed under Rule 5(1) of the Pakistan Cantonment Servants Rules, 1954. The said Constitutional Petitions were dismissed vide consolidated judgment dated 01.06.2017. The petitioner and others assailed the said judgment before this Court through Civil Petitions No. 384-K of 2017 etc but it also met the same fate vide judgment dated 23.11.2017. He then filed Civil Review Petition No. 23-K of 2018 which also stood dismissed vide order dated 07.06.2018. In the second round of litigation, the petitioner along with another challenged the vires of Rule 5(1) of the Pakistan Cantonment Servants Rules, 1954 before the High Court of Sindh, by filing Constitutional Petition No. D-5659 of 2018 with a prayer that the said Rule may be declared ultra vires of the law. However, the petition was also dismissed by the High Court on the ground that the said question has already been decided by this Court while dismissing Civil Petition Nos. 384-K of 2017 etc i.e. in the case reported as Tariq Iqbal Vs. D.G. Military Lands and Cantonments Department (2018 SCMR 335). Hence, this petition seeking leave to appeal. 3. The crux of the arguments advanced by the learned counsel for the petitioner is that Rule 5(1) of the Pakistan Cantonment Servants Rules, 1954, is contrary to sub-Section 2(c) of Section 280(c) of the Cantonments Act, 1924. He contended that the petitioner being a low paid employee, his transfer to a far flung area would certainly cause him financial constraints. 4. We have heard learned counsel for the petitioner at some length and have perused the record. 5. Primarily the question which is raised before us is whether the Rule 5(1) of the Pakistan Cantonment Servants Rules, 1954, is ultra vires of the law, the post held by the petitioner is transferable or not and whether the competent authority has misused the authority under the said Rule 5(1). We have noted that in the appointment letter dated 23.01.2010, which is available at page 36 of the paper book, it is clearly mentioned that the service of the petitioner is transferable. It would be advantageous to reproduce the relevant paragraphs of the appointment letter, which read as under:- “8. His service is transferable at any other station throughout Pakistan. Civil Petition No.283-K of 2020 3 9. If already, in service, he should produce paper admission/relieving order from his employer. 10. No TA/DA will be admissible to his for joining this appointment. 11. Should Mr. Muhammad Sajjad S/o Muhammad Zaman accept the above mentioned appointment, he should report for the duty in the office of Cantonment Board Pano Aqil by 6th February, 2010.” 6. Perusal of the aforesaid clauses clearly reflects that it was made clear to the petitioner that only if he accepts the aforesaid clauses, he should report for duty. Joining of duty by the petitioner means that he had accepted clause 8 of the appointment letter, which says that his service is transferable at any other station throughout Pakistan. In this view of the matter when the petitioner had accepted the conditions mentioned in the appointment letter, he was estopped to challenge the transfer order before the High Court. Even otherwise, in the earlier round of litigation, this matter has already been agitated and decided by this Court in the Tariq Iqbal supra case in the following terms:- “12. However, the important thing which need to be noted is that both Annexure-I and III were issued by the Director General Military Lands in exercise of power conferred under Rule 5(1) of the Rules of 1954 and in the same pattern Director General Military Lands on 03.11.1999 under exercise of the power conferred under the same Rules directed that all employees of Cantonment Boards in BS-5 and above who were in Non-Transferable categories were placed in Transferable Categories and therefore could be transferred anywhere throughout Pakistan. It is important to note that neither Annexure-I nor Annexure-III were notified in official gazette nor under Rule 5 of Rules of 1954, there appears to be any requirement to notify and publish in the official gazette any consequent change, made by the Director, Military Land and Cantonments. Additionally, petitioners could not be allowed, to back their case on the basis of Annexure-I and III issued by the Director, Military Land and Cantonments while exercising power under Rule 5(1) of the Rules 1954 and dispute the change in posting and transfer brought by the same Director, Military Land and Cantonments in the same manner vide his letter dated 03.11.1999 declaring all employees of the Cantonment Boards in BS-5 and above to transferable categories. It is also important to note that the Petitioners have never challenged the vires of Rule 5 of the Rules of 1954 and for the first time before this Court have simply contended that since clause (c) of subsection (2) of section 280 requires that the rules for the purposes of appointment, control, supervision, condition of service, transfer, suspension, removal, dismissal and punishment of servants of Boards need to be published and, therefore, any change brought therein needs to be published. Suffice is to observe that Pakistan Cantonments Servants Rules, 1954 were duly Civil Petition No.283-K of 2020 4 published in accordance with requirement of subsection (1) of section 280 and no change in the said rule has been questioned nor it has been brought to our notice. It is only the exercise of power by the Director now Director General ML&C under Rule 5 of the Rules, 1954 and the question as to whether the powers so conferred on the Director, Military Land and Cantonments inter alia, to issue service policy, provide cadres declare posts as transferable or not are intra vires of clause (3) of subsection (2) of section 280 or not, nor the provisions of Rule 5(1) which confer such powers on the Director, Military Land and Cantonments were ever questioned. On the contrary the entire case of the petitioners is based on Annexure I and III issued by the Director General ML&C in pursuance of Rule 5(1) of Rules of 1954. The contention thus fails.” 7. As all the issues raised by the petitioner have already been resolved by this Court in the judgment referred above, therefore, again challenging the transfer order on one pretext or the other is hit by the principle of ‘res judicata’ and the same is not sustainable in the eyes of law. Transfer of an employee/public servant falls within the ambit of “terms and conditions” of service, which includes transfer and posting. The petitioner neither agitated any element of mala fide on the part of the department nor any of his right has been infringed. Transfer and posting is part of service and it is for the authority to determine where services of any staff member are required. The department has exercised delegated powers while passing the impugned order of transfer and the same could not be termed as without jurisdiction or without lawful authority. 8. For what has been discussed above, this petition having no merit is accordingly dismissed and leave to appeal is refused. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 8th of March, 2021 Not Approved For Reporting Khurram

{'id': 'C.P.L.A.283-K_2020.pdf', 'url': ''}

{'id': 'C.P.L.A.283-K_2020.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI (4rñ CPLA No.287-P of 2016 And CPLA Nos.290-P to 295-P. 310-P, 110-P & 111-P of 2019 Against judgment dated 04.04.2016, 20-06-2018 11.10.2018, passed in Writ Petition No. 185-B of 2015 and Writ Petitions No.317-A, 142-A, 424-A, 414-A, 72-A, 186-A, 187-A, 258-A & 468-A of 2018, etc. Government of KP through Secretary, Petitioner(s) Home Department & others VERSUS Wali Khan, Zahid, Ghanimullah, Respondent(s) Aurarigzeb Imran, Gohar Zaman, Saif ur Rehman, Mir Shaid, Akhtar Au & Kamran Shah, etc For the Petitioner(s): Malik Akhtar Hussain, AddI.AG, KP For the Respondent(s) Mr. M. Amjad Jqbal Qureshi, ASC Date of Hearing: 15. 12 .202 1 IJAZ UL ARSAN, J-. Through this single judgment, we intend to decide Civil Petition Nos. 287-P of 2016, 110-P, 111-P, 291-P-295-P and 310-P of 2019 as they involve a common question of the law. 2. Through their petitions, the Petitioners have assailed the judgments of the Peshawar High Court, Peshawar dated 04-04- 2016, 20-06-2018 and 11-10-2018 passed in W.P.Nos.185-B/15 and 317-A, 142-A, 424-A, 414-A, 72-A, 186-A, 187-A, 258-A & 468-A/18, etc whereby the Constitutional Petitions filed by the Respondents were allowed. Resultantly, they were allowed the 1:1 CPLANos287-Pof2016. 290-pto295-P.310-P. 110-P& 111-P of2OJP 2 remissions as prayed for and their sentences were either suspended or the punishments which they were awarded were remitted. 3. The brief facts giving rise to this Us are that the Respondents were convicted under Section 302 of the r Pakistan Penal Code ("PPC") and sentenced to death by the trial Court for the commission of murder. They filed their respective appeals, and their sentences were modified to life imprisonment. Pursuant to various notifications issued by the Government, special remissions were granted to a class of prisoners by the President of the Islamic Republic of Pakistan (hereinafter referred to as "President") under Article 45 of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as "Constitution") on various occasions such as Eid and Independence Day of Pakistan etc. In light thereof, the Respondents applied to the Superintendents of their respective jails for the grant of ordinary and special remissions. They further requested that they be granted remissions under Article 45 of the Constitution. The Respondents were granted special and ordinary remissions. However, they were not granted the remissions provided in the notifications by the President under Article 45 of the Constitution. Aggrieved, they filed their respective writ petitions. The learned High Court allowed the same. The Petitioners have filed these Petitions for leave to appeal against the impugned judgments of High Court. CPL.4 Nos.287-Pof2016. 290-P to 295-P. 310-P. 110-P& 113-P of 2019 4. The learned Additional Advocate General, Khyber ía Pakhtunkhwa ("AG KP") contends that the notifications granting remissions to a certain class of prisoners excludes prisoners convicted of murder, espionage, anti-state activities, sectarianism, zina, robbery, dacoity, kidnapping/ abduction and terrorist acts. Therefore, the Respondents are not entitled to the remissions under the Notification since they have committed the crime of murder under Section 302 of the PPC. The learned AG KP has further submitted that the remissions to which the Respondents were entitled have already been given to them. As such, they cannot claim the said remissions twice. In this respect, the learned AG KP has relied upon the remission reports of the Respondents which are placed on the record. 5. The learned ASC for the Respondents has supported the impugned judgments and has stated that the Respondents were entitled to be granted remissions by the President under Article 45 of the Constitution and, denial of the same gave them locus standi to approach the High Court for enforcement of their fundamental rights. 6. We have heard the learned AG KP and the learned ASC for the Respondents. The main questions which require determination by this Court are as follows: - (i) Whether the class of prisoners which the Respondents belong to could be granted remissions by the President of Pakistan under the Constitution through various notifications? (ii) Could the Respondents be denied remissions in light of the judgment in the case of Nazar Hussain and Another v. The State (PLD 2010 Supreme Court 1021J? ra' CPLA Nos.287-Pof 2016. 290-P to 295-P. 310-P. 110-P & 11 1-P of 2OL2 4 (iii) Were the prisoner convicts in Criminal Petitions 291 and 293-P covered by the impugned judgment dated 04-04-2016? WHETHER THE CLASS OF PRISONERS WHICH THE RESPONDENTS BELONG TO COULD BE GRANTED REMISSIONS BY THE PRESIDENT OF PAKISTAN UNDER THE CONSTITUTION THROUGH VARIOUS OCCASIONS? 7. The President issued various notifications through which remissions were granted to prisoners on occasions such as Eid and the Independence Day of Pakistan. One such example of these notifications is the notification dated 13-08- 2011 whereby remissions were granted to a certain class of prisoners by the President on the advice of the Prime Minister of Pakistan on the occasion of l4 thAugust 2011. These notifications nonetheless provided that the said remissions were unavailable to prisoners convicted of offences such as murder. For ease of reference, the said portion of the notification dated 13-08-11 is reproduced hereunder as: - "Special remissions of 1151h of total sentence awarded by the Courts to all convict prisoners and have undergone at least 213rd of substantive sentence of imprisonment except those convicted of murder, espionage, anti-state activities, sectarianism, Zina (Sec. 10 Offence of Zina (Enforcement of Hudood) Ordinance 1979 (also under Sec. 377 PPC), robbery (Sec. 394 PPC), dacoitu (Sec. 395 - 396 PPC), Kidnapping/ abduction (Sec. 364-A & 365-A) and terrorist acts (as defined in the Anti-Terrorism (Second Amendment) Ordinance 1999 M. XIII of 1996 " (Underlining is ours) 8. The latest notification placed on the record in this respect is the notification dated 31-05-2019 with the subject "Special Remissions in sentences on the occasion of Eid- ul-Fltar, 2019". The said notification has been issued by the Ministry of Interior, Government of Pakistan and it is clear in insofar as convicts of murder and other serious crimes such as robbery and kidnapping are concerned that the said remissions shall not be granted to them. All the notifications CPLA Nos.287-P of 2016, 290-P to 295-P, 310-1', 110-P& 221-P of 2019 5 granting remissions, relied upon by the Respondents clearly and unequivocally state that convicts involved in serious crimes including murder, will not be entitled to special remissions. It is therefore clear that the Respondents could not have been granted remissions since they fall in the exceptions provided in the notifications ibid. No doubt, the power of clemency is a safeguard against possible injustice, nonetheless, the principles of criminal justice divide each crime into different categories. It is for this reason that murder is put at a higher level and attracts a greater punishment than assault because of the repercussions it has for the victim's family and for the society at large. This is perfectly in line with the objectives of the criminal justice system as well. The criminal justice system aims, inter alia, to rehabilitate offenders, retribute, punish, deter, and maintain peace and order in the society. One of the main purposes of a punitive and retributive system is to socially oust criminals in an exemplary manner, in the larger interest and protect law abiding citizens from criminal acts. The Respondents, after having committed crimes of heinous nature, were denied remissions by the President while exercising his authority under Article 45 of the Constitution. This was in line with the notifications so issued and the learned High Court erred in law as well as in fact to hold that the Respondents were entitled to remissions. r 9. The case law relied upon by the learned High Court is distinguishable. The relevant paragraph of the CPLA Nos.287-P of 2016 290-P to 295-P. 310-P. 110-p & 111-P of 2919 M judgment reported as Halt Abdul All z'. Haft Bismillah (PLD 2005 Supreme Court 163) is reproduced as under: - "However, the remission of one year granted by the President of Pakistan on 6-1-2000, under Article 45 of the Constitution could not be refused to him on that ground. The order dated 6-1-2000 of the President of Pakistan passed in exercise of constitutional power did not lag down anti such limitation or condition that a convict who was sentenced to life imprisonment under section 302(b). P.P.0 fallin g in Chapter XVI of the P.P.0 would be disentitled to the remission bu virtue of section 402-C or Criminal Procedure Code.". (Underlining is ours) The case law ibid talks specifically about the notification dated 06-01-2000 in which exceptions such as those made in the notifications in question in the present Us have not been mentioned. Therefore, the case cited by the learned High Court was specific in nature and was restricted to the facts and circumstances on which the adjudication was being made at that time. The learned High Court without appreciating the distinguishing features and circumstances of the present us has applied the principles of Half Abdul Alt's case to the present us without adverting to the fact that the notifications under which the Respondents are asking for remissions specifically exclude prisoner convicts who are convicted of murder and, abduction, and terrorist acts etc under the PPC. Therefore, the learned High Court misdirected itself and erred in law and in fact in reaching an erroneous conclusion which is not legally sustainable. COULD THE RESPONDENTS BE DENIED REMISSIONS IN LIGHT OF THE JUDGMENT IN THE CASE OF NAZAP HUSS44IN AND ANOTHER V. THE STATE (PLD 2010 SUPREME COURT 1021)? 10. The powers of the President under Article 45 of the Constitution are no doubt unabridged by any subordinate CPL.4 Nos.287-2 of 2016. 290-P to 295-P. 310-P. 110-P& 111-P of 2019 7 legislation as provided in Nazar Hussain and another v. The State (PLD 2010 Supreme Court 1021. In the case at hand, Rule 207 of the Pakistan Prison Rules empower the Superintendents of the respective jail to grant remissions. Nevertheless, where there is a conflict between the Pakistan Prison Rules and any provision of the Constitution, it is settled rule of law that the provisions of the Constitution shall prevail. There is, however, a fundamental difference in exercise of powers by the superintendent of the jail and the President of Pakistan. The Superintendent does not grant executive clemency. He exercises authority under the relevant law by allowing only those remissions granted to prisoners which are provided in the law. The superintendent cannot therefore issue a notification on his own volition and allow prisoners remissions on various occasions. His actions must be backed by the law. The President on the other hand, may issue such notifications and allow remissions in exercise of his Constitutional powers. For ease of reference, Article 45 is reproduced below: - "The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority". The President therefore has a wide range of powers provided under the Constitution. On the other hand, the Superintendent exercises limited powers available to him under the law. He cannot under any circumstances exercise the powers available to the President. The superintendent can merely grant remissions specified in the Jail Manual to prisoners who qualify for the same. The President may, CPLA Nos.287-Pof2016. 290-P to 295- p. 370-P. 110-P& 111-P of 2019 8 C however, grant remissions on any occasion, which is a wide- ranging power only available to the President under the Constitution. Executive clemency is exercised to reinforce the rehabilitative objective of the criminal justice system. Nonetheless, it does not exist to provide blanket protection to criminals who have committed serious crimes against society. 11. The learned ASC for the Respondents has submitted that the Respondents could not have been denied remissions under Article 45 when they were granted the benefit of Section 382-B of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C") because this amounted to depriving the Respondents of their liberty. In this respect, they have relied upon the case of Nazar Hussain (supra). We are unable to agree with the contention of the learned ASC for the Respondents. Article 25 of the Constitution provides that all citizens are equal and are entitled to equal protection of the law. The state is, however, empowered to create classifications based on intelligible differentia. This means classifications on a rational or reasonable basis, having a nexus with the object sought to be achieved. The President is fully empowered to make such a classification and exclude those who have committed serious crimes such as murder, abduction, terrorism etc. It may be noted that the concept of classifications is not alien to our criminal jurisprudence. A class of prisoner convicts has also been denied even remissions in the Pakistan Prison Rules, 1978. Rule 201-A of which provides that: C CPLA Nos.287-Pof201& 290-P to 295-P. 3)0-P. 11Q-P& iii-? at 2019 9 "Notwithstanding anything contained in these rules, a person convicted under the charge of espionage! anti- state activities shall not be entitled to ordinary and special remission unless Federal Government or the Provincial Government or competent authority makes a specific order in writing in this behalf". 12. The denial of remissions even in the Prison Rules to those convicted of espionage/anti-state activities furthers the argument that if a class is created based on intelligible differentia, backed by reasonable or rational basis, it does not violate the Constitutional mandate of Article 25. Even the discrimination argument is available only in cases of unequal treatment amongst equals. To suggest that a person convicted of murder, terrorism, kidnapping or abduction deserves equal treatment with a person convicted of petty theft or some other "minor" offence is, to say the least, ex fade, absurd, preposterous and illogical. Hence, the argument of the learned ASC for the Respondents in this behalf is found to be misconceived and is accordingly repelled. WERE THE PRISONER CONVICTS IN CRIMINAL PETITIONS 291 AND 293-P COVERED BY THE IMPUGNED JUDGMENT DATED 04-04-2016? 13. The learned High Court has held in some of the impugned judgments that the cases of the Respondents in Criminal Petitions 291 and 293-P are covered by the impugned judgment dated 04-04-2016. We are unable to agree with this conclusion. Firstly, the learned High Court for reasons best known to it has given no justification as to how a precedent of a conviction of murder under Section 302 of the PPC can or may be applied to case of abduction under Section 365-A of the PPC. The learned High Court has simply held that the cases of the said Respondents are covered by 4. fr I. CPL.# fVos.287-P of 2016. 290-P to 295-P. 370-P. 1 10-P& 211-P of 201 10 the impugned judgment dated 04-04-2016. It is settled law that each case must be adjudged on its own facts and circumstances. The cases of the said Respondents were entirely different than the case under determination before the High Court in which the impugned judgment dated 04- 04-2016 was passed. Therefore, we hold that the learned High Court incorrectly applied the law and the judgment dated 04- 04-2016 and 20-06-2018 to the cases of the Respondents in Criminal Petitions 291 and 293-P of 2019. 14. Even otherwise, the notifications issued by the Government clearly exclude the said Respondents from getting remissions since they have been convicted for abduction, which has been specifically named in the notifications to be excluded from the benefit of remissions. As such, the learned High Court has erred in law and in fact in applying the impugned judgments ibid to the case of the said Respondents which are even otherwise entirely different and distinguishable. 15. The impugned judgment of the learned High Court proceeds on erroneous grounds has jurisdictional errors and suffers from legal defects discussed above which warrant interference of this Court. The learned Counsel for the Respondents has been unable to persuade us to endorse the view taken by the learned High Court. 16. As a result of the above discussion, these Ctv1 Petitions are converted into appeals and allowed. The - V - CPLA Nos.287-P of 2016. 290-P to 295-P. 310-P. 110-P& ui-p of 2019 11 - impugned judgments of the Peshawar High Court dated 04- 04-2016, 20-06-2018 and 11-10-2018 are accordingly set- aside. 17. We had vide order dated 28-05-2021 directed that the AG KP may submit a summary of relevant facts of each case. It has been brought to our notice that the convicts in C\v\l Petitions 111-P. 290-P. 292-P and 295-P Hsve been released having served their respective sentences. As such, the said Cvi I Petitions are dismissed as having become infructuous. ISLAMABAD, THE 15th p1 December, 2021 Hcznflshtiaq/ * Jj6t Approved For C)

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL. MR. JUSTICE IJAZ UL AHSAN. Civil Petitions No.2916, 3219, 2757-L & 3063-L of 2019 AGAINST JUDGEMENTS DATED 24.06.2019 & 25.09.2019 OF THE LAHORE HIGH COURT, LAHORE PASSED IN ICA NOS.36401, 36402 & 39849 OF 2019. Muhammad Zubair Choudhary & others Petitioner(s) rl„ cp N,.2916/20r 9) Haroon Qadir & others Petitioner(s) an CP N,.32 1 9/2019) Akhtar Saeed Medical & Dental College Petitioner(s) a. cp N,.2757-L/2019) Rafay Tariq & others Petitioner(s) f„ cp N,.3063-L/2019) Versus Pakistan Medical & Dental Council & others Respondent(s) („, ,II ,,,,,) For the Petitioner(s) : Sardar Muhammad Aslam, Sr. ASC (in CP No.2916/ 2019) Ch. Mushtaq Ahmed Khan, ASC. (in CP No.32 1 9/ 2019) In Person (in CP No.2757-L/ 2019) Mian M. Rauf. ASC (in CP No.3063-L/ 2019) For the Respondent(s) : Ch. M. Umar, ASC (For Respondent # 1) Ch. M. Atiq, ASC. (For Respondent # 2) Date of Hearing: 25.10.2019 JUDGMENT IJAZ UL AHSAN, J-. These Petitions have been filed against judgements of learned Division Benches of the Lahore High Court dated 24.06.2019 & 25.09.2019. The Petitioners include prospective medical and dentistry students (the KPetitioneT Students”\ as wen as a medical ,',U,g, (th, “p,titioner Coll'g'”I. Th' P'thi'’"''; ''==t'="i th at th e Iyr b e a11 o w e d t o fi11 L1]F) s e at s at private med ( alco leg es Chit Petitions No.2916, 3219, 2757-L & 3063-L of 2019 -2- which have been left vacant after conclusion of the admissions process and lapse of the admissions deadline set by the Pakistan Medical and Dental Council (“PM&DC”) for the 2018-2019 academic year. These Civil Petition Nos.2916, 3219, 2757–l & 3063-L of 2019 were dismissed bride short order dated 25.10.2019. The detailed reasons and guidelines of this Court in light of our conclusions and findings are set out below. e 2. Provision of quality medical and dental education forms the very basis of a country’s healthcare system. It stands to reason, therefore, that 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 centres for its doctors and healthcare professionals. Indeed, medicine has always been amongst the most popular career choices for Pakistani students over the years and it is therefore no surprise that a large number of medical and dental colleges have sprung up to cater to the rising demand for medical and dental education. However, this rise in demand and the opening up of an ever-greater number of private medical colleges has also caused a number of regulatory challenges. The regulatory structure which is less than perfect for various reasons, which need not be mentioned here, has resulted in a fall in standards of medical education and training as well as several discrepancies, some intended and deliberate and others, not, in medical and dental admissions across the country. -Sjr Ciuil Petitipns No.2916, 3219, & 2757-L of 2019 -3- 3. For the past 57 years the medical profession has been regulated by the Pakistan Medical and Dental Council Ordinance, 1962 (the “1962 Ordinanee”). Under the said Ordinance, PM&DC was created as a federal body for the regulation and control of the medical profession, it also formulates regulations regarding inter alia minimum standards of medical and dental education, conditions for admission into medical and dental degrees and the registration of medical and dental students. The 1962 Ordinance was subsequently amended through various Acts and Ordinances. Following promulgation of the 1962 Ordinance, various regulations were also framed and notified by the PM&DC from time to time in order to regulate admissions, training, education, house jobs, and internships of medical and dental students. Most recently the MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018 (the “2018 Regulations”) were notified by the PM&DC and were subsequently amended on 30.05.2019. 6 4. However, the 1962 Ordinance was repealed by the Pakistan Medical Commission Ordinance, 2019 (the “2019 Ordinance”) which was promulgated by the President of Pakistan on 19.10.2019 and subsequently lapsed. The 2019 Act provides for the creation of a new body – the Pakistan Medical Commission (“PMC”) – and the dissolution of the PM&DC. While no new regulations have been framed by the PMC under the 2019 Act as yet, some of the 2018 Regulations have apparently been adopted during the transitory period e \ 4 Gun Petitions No.2916, 3219, & 2757-L of2019 -4- while new rules and regulations are framed and notified by the PMC pursuant to the 2019 Ordinance. 5. During this time, students and private medical and dental colleges have been approaching this Court and the High Courts across the country for redressa1 of grievances arising out of issues relating to the admissions process of medical and dental students, publication of merit lists, grmlt of recognition and denotification of colleges, cut-off dates for the admissions process and most notably the issue of adjustments on vacant seats in medical and dental colleges which were unable to fill up the entire number of seats sanctioned to them by the PM&DC. These have been the underlying issues in various judgements of this Court as well, most recently in Hashmat Medical and Dental College u Pakistan Medical and Dental Council (2018 SCMR 1310) and Pakistan Medical and Dental Council v. Muhammad Fahad Malik (2018 SCMR 1956). 6. In fact, the spate of litigation resulting out of these issues and the onslaught of cases filed in the Courts before the start of every academic year led this Court to take notice of the matters directly in Suo Motu Case No. 1 of 2010 which was disposed of tide order dated 17.09.2018 after the PM&DC furnished draft rules and regulations containing a Centralised Admissions Policy and mechanisms to address the various issues mentioned hereinabove. Subsequently, the PM&DC also introduced various new regulations through the 2018 Regulations on 30.05.20 19. However, disputes e Ciuil Petitions No.2916, 3219, & 2757-L of 2019 -5- regarding the conduct of admissions, vacant seats, administration of the Medical and Dental College Admission Test (“MDCAT”), publication of merit lists, and discrepancies between the registration/enrolment of students at various medical and dental colleges still continue to arise. 7. As a consequence of these issues, over the past several years the country has seen a consistent decline in the quality of education, training and facilities afforded to its medical and dental education/training students. The rise in the number of private medical and dental colleges and the resultant rise in the number of seats available at medical and dental colleges has also been met with a continuous decline in the quality of entrants who are admitted into these degrees. In a country like Pakistan – whose healthcare system already suffers from a number of chronic issues – this decline in the quality of medical education imparted to future doctors is creating an alarming situation. 6 8. In the present cases, Learned Counsel for the Petitioner Students have argued that vacant seats at private medical colleges become available every year after the conclusion of the admissions process due to 'drop-out’ students. Drop-out students are those students who have qualified for admission pursuant to the merit lists published by the PM&DC but have either chosen different medical colleges or have not taken up their offers of admission. They ha„, p,ay,d that th, C,U,t may all,w th,m t, b, adj„„t,d against these seats. Learned Counsel for Petitioner Students 6 \ CH + ChAI Petitions No.2916, 3219, & 2757-L o,f 2019 -6- has argued that the Centralized Admissions Policy under the 2018 Regulations provides for the creation of a merit list by the PM&DC on the basis of which medical and dental colleges are allocated students based on the preferences given by the students themselves. However, some students do not opt for the colleges which offer them admission as they get upgraded to colleges which were higher up on their preference. Further, some students are offered admission to public sector medical and dental colleges which are the preferred options for most students and their parents on account of better standards and lower costs. Consequently, the seats not taken up by them remain vacant. Learned counsel for the Petitioner Students has argued that Respondent No. 1’s decision to not allow further admissions after the cut-off date has resulted in a number of vacant seats at Sahara Medical College and other such private medical and dental colleges, where the Petitioner Students could be allowed admission if it were not for the cut- off date. Learned Counsel contends that the Petitioner Students were likely to qualify for admission in the next merit list, had the cut-off date not been imposed. Cut-off date is a date after which no further admissions can take place pursuant to the 2018 Regulations. 6 e 9. Learned Counsel for the Petitioner College has argued that under the Centralized Admissions Policy, medical and dental colleges are allocated a certain number of seats. In order to fill these seats, the colleges are provided with merit lists by Respondent No.1 (PM&DC) on the basis of which \ I Gull Petitions No.2916, 3219, & 2757-L of 2019 -7- these seats must be filled. Since not all of these seats are filled in the first round, Respondent No. 1 also provides successive merit lists in order to fill up the remaining seats. In light of this scheme, learned Counsel for the Petitioner College has argued that by implementing a cut-off date after which seats have remained vacant, Respondent No.1 has not fulfilled its statutory obligation. It was also his contention that Respondents have acted in a discriminatory manner as similar adjustments were allowed to Hashmat Medical and Dental College as well as Bolan University. As a result of these seats remaining vacant, it is contended that they will incur a loss for the next 5 years over which these seats will remain empty. This will result in a huge loss of investment made by the Petitioner College to provide facilities for a certain number of students as per the allocation made for it by Respondent No. 1. 6 10. Chaudhary Muhammad Umar, ASC, Learned Counsel for the Respondents has argued that no case of discrimination exists in the circumstances. He clarified that Hashmat Medical College has not been allowed any extensions and is not even allowed to admit any students as it was de-notified by the Federal Government vide notification dated 14.Ol.2019. Instead, he clarified that the issue was of adjustment and not extension, since students enrolled at the college had to be adjusted at other colleges as a result of Hashmat Medical College’s de-notification. This had to be done in order to safeguard the academic year of the students e Ciuil Petitions No.2916, 3219, & 2757-1, of2019 -8- a I in question. In the case of Bolan University, Learned Counsel also clarified that no extensions had been provided by the PM&DC and any advertisements made by Bolan University after the cut-off date for further admissions had been published without sanction or approval of PM&DC, mld are therefore totally unauthorized. Such admissions if made shall be dealt with in accordance with the law. 6 11. Learned Counsel for the Respondents also argped that another issue in these circumstances was the difference in the start of academic years in the Provinces of Punjab and Balochistan (where the academic year commenced later than Punjab). He argued that owing to this fact, there can be no case for discrimination between medical and dental colleges in Punjab and Balochistan because the same dates do not apply to them. Additionally, Learned Counsel also mgped that the dissolution of PM&DC uide the promulgation of the 2019 Ordinance had resulted in extraordinary circumstances during the 2018-2019 academic year. As a result of these circumstances and the creation of a new council, the cut-off date was already extended from 31.12.2018 to 31.03.2019 and finally to IO.04.2019. During this time, 9 successive merit lists were provided to medical and dental colleges to provide a fair chance to fill up their seats. However, Learned Counsel argued that under the 2018 Regulations there is a strict requirement for a nine-month academic year for medical and dental students, which cannot be adhered to if e ) I Ciuil Petitions No.2916, 3219, & 2757-L of 2019 -9- the admission deadline is continuously extended in order to accommodate the requests of the Petitioner College. 12. Having heard the arguments from both sides and perused the record, we are of the opinion that the Division Bench of the Lahore High Court has comprehensively addressed the issue of discrimination and has clarified that the facts in the case of Hashmat Medical and Dental College related to the de-notification of the college by PM&DC, as a result of which enrolled medical students had to be adjusted in various other medical colleges, and hence were distinguishable from the present case. Similarly, we find that the grievances of the Petitioner Students and the Petitioner College with respect to remaining vacant seats at medical and dental colleges have also been addressed by the Division Bench of the Lahore High Court, and we are inclined to agree with these findings. 6 13. However, we are also concerned with the continuous and long-standing issues with respect to admissions in medical and dental colleges, recognition and enforcement of the rules and regulations made by PM&DC/PMC, regulatory loopholes in the existing regulations and the enforcement of these rules. Therefore, in light of the issues raised by the Learned Counsel for the Petitioners and the Learned Counsel for PM&DC, as well as this Court’s opinion on the challenges brought before it by the regulator, medical and dental students, and medical and dental e .} 4 e B I Ciuit Petitions No.2916, 3219, & 2757-L of 2019 - 10 - colleges, the following observations are made being fundamental to the issues raised before us: i) Adjustments on vacant seats: During the present case as well as in earlier matters regarding admissions in medical and dental colleges the issue of vacant seats has been a constant grievance. On the one hand, medical and dental colleges have time and again contended that they be allowed to fill their entire quota of seats allocated for that year by PM&DC. On the other hand, the record shows that these allowances also result in the admission of students who fall much lower on the merit lists but are offered admission into medical and dental institutions due to continuous extensions of the admission cut-off date as well as the issuance of successive merit lists. b In order to resolve this issue, we find that no admission against vacant seats left by “drop-out” students (defined under Regulation 2(d) of the 2018 Regulations) or against vacant seats left after passing of the admissions deadline set by the PM&DC/PMC should be allowed under any circumstances whatsoever. It must also be ensured that no student whose aggregate scores and MDCAT results fall below the cut-off threshold, assigned by the PM&DC/PMC for that academic year, is admitted into any medical or dental colleges. This should be done regardless of the numb,, of va,ant s,ats at medical or dental colleges or any c,th,, ci,cum,tan,,, gi„ing ,i,, to su,Plu, seats across the country. e Chat Petitions No.2916, 3219, & 2757-L of 2019 - 11 - T V I Additionally, the practice of granting extensions to medical and dental colleges after the expiry of the admission deadline allowed by the PM&DC/PMC must be discontinued, forthwith. Imparting medical and dental education is not a business and must not be motivated by a desire for profit maximization. The statutory and regulatory framework must be vigorously and strictly implemented and enforced with the sole objective of imparting the best possible medical and dental education and training on students of the highest possible merit whose abilities must be thoroughly checked through high standard examination at every level on the theoretical as well as practical side. Merit, competence, and ability must be ensured when the students graduate because they would be dealing with human lives on a daily basis. Different academic years across provinces: During the proceedings of the present case as well as in previous cases on the same subject before this Court, including Hashmat Medical and Dental College (Supra), both private medical colleges and students have time and again raised the contention that they be allowed adjustment after the lapse of admission deadlines set up by the PM&DC due to the differences in the start of academic years at medical colleges across the country. This discrepancy between the start of academic years in various provinces also results in confusion amongst applicants looking to pursue their medical or dental education outside of the province of their domicile. In order to resolve this issue a uniform academic year for medical students should be encouraged across all provinces in conjunction with the uniform medical admissions test – the MDCAT. PM&DC/PMC must b ii) Chit Petitions No.2916, 3219, & 2757-L of 2019 - 12 - q a endeavour that a strict guideline is enforced to ensure both that academic years in various provinces start at the same time and that their length is also uniform. iii) Earlier enrolment and admissions deadline to be implemented: Regulation 9(23) of the 2018 Regulations mandates that all medical and dental colleges must submit a list of registered students to the PM&DC/PMC no later than 31st March of each year. Whereas, the admissions deadline set by the PM&DC/PMC is the 31st December of each year. This has created a loophole for many colleges who continue to admit students after the lapse of the admission deadlines set by the PM&DC/PMC (3 lst December) and subsequently add their names to the list by the 31st of March. For this reason, a separate admissions acceptance deadline (at least a month prior to the start of each academic year) and an enrolment deadline (during the first week of the academic year for medical and dental students to take up the places offered at their respective colleges) should be implemented in order to ensure the entire process is completed by the time the academic year starts. All medical and dental colleges must submit lists of all enrolled students to the PM&DC/PMC immediately after the lapse of the enrolment deadline. The PM&DC/PMC should not accept the names of any students enrolled on the register of any college after the academic year has already started. This should be done particularly to ensure that the entire admissions process has been completed before the start of each academic year, and that all concerns related to admissions are resolved in a timely e e Ciuil Petitions No.2916, 3219, & 2757-L of 2019 - 13 - lr 1 fashion without creating any delays in the beginning of the academic year. Duration of the Academic Year: The examination guidelines under Regulation 22 of the 2018 Regulations require colleges to ensure that their academic year is at least nine months long. However, in the past several colleges have either violated this provision altogether or have approached the PM&DC/PMC, the Honourable High Courts, and this Court at various times to allow them to condense the academic year down by initiating additional studies and courses during the winter and summer holidays as well as other public holidays. This has also been used as a means for newly formed/registered colleges to start their classes immediately, even if they were recognized by the PM&DC/PMC or registered during the middle of an ongoing academic year. iv) We are of the opinion that this Kpractice is both detrimental and counterproductive to the cause of medical and dental students as well as colleges providing medical and dental education. The responsibility of determining the length of the academic year is within the purview of the regulator –PM&DC/PMC – and as such no medical and dental colleges should be allowed to bypass this requirement by holding classes during holidays, weekends and vacations and newly formed/registered colleges should not be allowed to admit any students before the start of the next academic year. It should be ensured by the PM&DC/PMC that the academic year for all students across the country is of u„if,,m I„,gth and that any n,w ,olleges adhere to the same process as existing colleges. In case new medical or dental + Chit Petitions No.2916, 3219, &_2757-L of2019 - 14 - • I colleges are granted recognition or registered during a particular academic year, they should not be allowed to enrol any students before the next academic year. V) MDCAT and the admissions process: Entry 11, Part II of the Federal Legislative List, Fourth Schedule to the Constitution of the Islamic Republic of Pakistan, 1973 empowers the Federation to deal with all matters related to the medical profession. PM&DC/PMC should, therefore, ensure a uniform weightage for the MDCAT across all provinces in order to deal with discrimination and the issues of medical students seeking admission in colleges outside of the province of their domicile. It was also brought to our attention during the proceedings of the present case that the individual percentages assigned to all components of the aggregate formula used in the formulation of merit lists (e.g. HSSC:/F.Sc./O-Level/ A-Level/IB scores) is not uniform across all provinces and medical and dental colleges. This has also led to grievances by many prospective students who believe that their admissions were prejudiced by virtue of the weightage given to particular components in the determination of their merit. In order to resolve this, the weightage given to the various components used in the calculation of students’ ranks on the merit list must be uniform across all provinces and for all medical and dental colleges. Additionally, PM&DC/PMC must ensure that the MDCAT is applicable to all students seeking admission in medical or dental colleges across Pakistan. Enhancement of admission capacity and ceilings for permissible seats : 8 V vi) \ Ciuil Petitions No.2916, 3219, & 2757-L of 2019 - 15 - A key issue throughout the present proceedings and in earlier matters has been the allocation of seats to medical and dental colleges by the PM&DC/PMC. The issue of vacant seats and the falling standards of education as the number of seats at medical and dental colleges must be resolved in a fair and transparent manner. To this end, the admission capacity granted to public or private medical and dental colleges should be linked with minimum standards of inter alia facilities, infrastructure, teaching faculty, courses offered, number of departments, staff, accommodation capacity and reports of inspections from previous years. In order to ensure compliance with such standards, the colleges that admit students beyond admission capacity should be dealt with in accordance with law. 8 These minimum standards must clearly set out the basic requirements to be fulfilled before a certain number of students are allowed to be admitted to a medical or dental college. This should be done by creating different tiers of admission capacity e.g. up to 50 students, up to 100 students, up to 150 students etc. With each tier of admission capacity, therefore, a greater number of requirements and higher minimum standards must be fulfilled. In case colleges wish to increase their admission capacities, they must ensure compliance with the complete satisfaction of PM&DC/PMC, with the minimum standards set for higher numbers of admission capacity before making applications for this purpose. PM&DC/PMC must put in place robust and effective mechanisms and procedures for site visits and regulator inspections (at least once a year) of each and every medical and dental institution to ensure that V I ChAt Petitions No.2916, 3219, & 2757-L of2019 - 16 - the requisite standards are being maintained in terms of staff, faculty, laboratories, theatres, class rooms, lecture halls, facilities, equipment, etc. Fulfilment of Minimum Standards by all medical and dental colleges: This Court in previous cases such as Hashmqt IVledicat and Dental Cotteqe (Supra) as well as this present case has observed the shocking lack of compliance by medical and dental colleges with minimum standards set up by PM&DC/PMC and their habitual avoidance of inspections. In order to resolve this, and to ensure compliance with the standards set up by PM&DC/PMC, broader powers to inspect must be given to officers of PM&DC/PMC, including the powers to call for records of medical and dental colleges as well as provisions allowing the inspection of financial and student records. PM&DC/PMC must also make such inspections throughout the year in order to ensure complete compliance with the standards and rules set out by it. Inspections should not be limited to the grant of recognition or renewal of such recognition afforded to any medical or dental college. A standard form based on a points system must be developed, covering every material aspect of medical and dental education. Institutions failing to meet requisite standards must be dealt with in accordance with law. vii) @ viii) Publication of statistics and rankings: The data collected through the aforementioned inspections as well as PM&DC/PMC’s own records with respect to the passing rates of students from individual institutions in central examinations, National Licensing Examinations and other professional examinations \ q e CMI Petitions No,2916, 3219, & 2757-L of 2019 - 17 - conducted by PM&DC/PMC should be made publicly available in order to better inform prospective students, parents and other concerned parties. This will also help empower students to make more informed choices when choosing priority colleges and decrease the number of “drop- out” students. A ranking system must also be devised, taking into account the factors including those mentioned above as well as other factors such as student satisfaction, provision of facilities, compliance with minimum standards, etc. This comprehensive ranking system should be made publicly available for the benefit of all those interested in the medical profession, prospective students, employers and the public at large. ix) Removal of conflicts of interest and “regulatory capture” In the past, many actions were taken by PM&DC/PMC for the benefit of medical and dental colleges that were not in the larger public interest. These include recognition, subsequent renewal of recognition and registration of sub- standard colleges, continuous extensions for medical and dental colleges to fill up the entirety of their admissions capacities at the cost of students’ education and the length of their academic years, etc. For any regulatory body, such as PM&,DC'/PMC, set up by the government, it is pertinent that the regulation of the entity under its purview is done in a fair, transparent and impartial manner. However, when the membership of such a regulatory body, tasked with protecting the public interest, becomes populated with – or starts advancing the interests of – a particular interest group : at a A e Ciuil Petitions No.2916, 3219, & 2757-L of 2019 - 18 - or lobby within the entity it is regulating, the entire purpose of its existence is defeated. This phenomenon is often referred to as the doctrine of “regulatory capture.” Reliance in this respect is placed on Muhammad Yasin v. Federation of Pakistan throuqh Secretan4, Establishment Division, Islamabad and others (PLD 2012 SC 132), where Jawwad S. Khawaja, J, speaking for the Supreme Court, stated that: “23. The provisions that the Legislature has made for ensuring regulatory autonomy are a reflection of accumulated economic wisdom based on empirical study. Here we can cite just one pertinent example from contemporary literature on regulatory economics pointing to the rationale and text of the Ordinance. In her article "E:ffectiveness of Regulatory Structure in the Power Sector of Pakistan", Ajta MaRk, a research economist at the Pakistan Institute of Deuelopment Economics, Islamabad, identifIes "regulatory autonomy" as the foremost indicator of good regulatory governance. "Regulatory autonomy" refers to the regulator's ability to resist the pressure of 'regutatory capture’ and pressures from economic and political interest groups. Amongst the key dangers to watch out for, according to the author, are '’[u]ndue interference and influence of the gouernment" which the author says hamper "independent functioning, which in turn affects the consumers as wen as producers." Also, A.R. Kamal, one of Pakistan's renowned development economists has similarly highlighted the importance of effective checks, cautioning against the danger of compromising the autonomy of regulatory institutions. He warns: "[s]ince there is a cycle where the regulatory agencies ouer time degenerate into protecting the organizations which they are supposed to regulate, checks and balances must be put in place so that persons in responsible positions in these bodies are not corrupted." He further emphasises that "regulatory authorities . . . . . .. must be given autonomy so that their decisions gain credibility; and checks and balances should be so formulated that they cannot indulge in corrupt practices. " The legislature has taken stock of these concerns and made a number o/ prouisioILS noted above for such "checks and balances„. „ d+ ), fe I Chit Petitions No.2916, 3219, & 2757-L of2019 - 19 - 14. In light of these issues, we are of the view that a transparent and fair process for the nomination/selection of the membership of PM&DC/PMC and its constituent bodies and boards should be adopted. This process should be clearly laid out and must be designed to ensure that no 'conflicts of interest’ are present within the membership. In fact, the best way to safeguard against potential 'regulatory capture’ and to ensure the integrity and credibility of any regulatory agency is through a 'no conflict of interest’ provision. Such a provision must be designed to ensure that no individual with any pecuniary, material or other direct or indirect interest in a medical or dental college can become a member of PM&DC/PMC or any of its constituent bodies. This conflict of interest provision must also stretch to the immediate family of the members. 8 15. In addition to the nomination/selection of the membership, it must be ensured that no conflicts of interest arise after a member has been appointed to PM&DC/PMC or any of its constituent bodies. This must be done through the introduction of a positive obligation upon all members of PM&DC/PMC and any of its constituent bodies regarding the disclosure of any interests in any matter put up before the body of which the member is a part. The members must be bound to declare any such conflict that they are aware of or should be aware of in advance and must recuse themselves f,,m ,,ting ,, taking any d,,i,i,n, with regard to such matters. In case such a conflict of interest is not disclosed by W C # - 20 - + IF +r'I ~HI Ciuit Petitions No.2914 3219, & 2757-L of 2019 the member in question, a comprehensive provision for the immediate removal of such a member must be introduced. 16. Although the petitions have not been pressed, we have considered it appropriate to record reasons and guidelines based upon elaborate and detailed submissions addressed by both sides for guidance of PM&DC/PMC to streamline their working to reduce unnecessary litigation for bringing improvements in implementation of the laws on the subject. This, in our view, is of paramount importance considering the alarming state of affairs in the dental and healthcare educational set up existing in our country. For ease of reference, our short order dated 25.10.2019 is reproduced below: “For detailed reasons to be recorded later, it is noted that the learned counsel for the petitioners do not press their petitions in order to audI their remedy strictly in accordance with law before the Pakistan now duty constituted. ” e Medical CorrLmission tv ISLAMABAD. THE 25th of October 2019 MAU/ * APPROVED FOR REPORTING

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITION NO. 2944 OF 2019 (On appeal against the judgment dated 24.04.2019 passed by the Islamabad High Court, Islamabad in Writ Petition No. 3805/2012) Abdul Rehman and others … Petitioners Versus Secretary, Ministry of Communication etc … Respondents For the Petitioners: Syed Asghar Hussain Sabzwari, ASC Mr. Mehmood A. Sheikh, AOR For the Respondents: N.R. Date of Hearing: 18.08.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have called in question the judgment dated 24.04.2019 passed by the learned Islamabad High Court, whereby the writ petition filed by the petitioners, praying that they may be treated at par with the other regular employees of the respondent department and given special allowances, was dismissed. 2. Briefly stated the facts of the matter are that the petitioners performed their duties in the National Highways and Motorways Police (NH&MP) as deputationists on different posts at different intervals. Beside other allowances, an allowance equal to one month’s pay was admissible to the regular employees of the NH&MP but the petitioners were deprived of the said allowance. In June, 2001, the fixed daily allowance for those Civil Petition No. 2944/2019 -: 2 :- performing operational duties was revised/enhanced but the petitioners were again not given the relief. Although, with effect from 1st of July, 2004, the daily allowance of the petitioners was increased but the petitioners wanted the same to be made applicable from back date i.e. June 2001. This led to their filing of Writ Petition Nos. 1989/2007 & 1446/2008 before the Islamabad High Court, which were disposed of on 22.07.2008 & 06.04.2009 with the direction that the petitioners shall file a representation and the respondents will dispose it of in accordance with law. When this could not be done, the petitioners filed Criminal Original Nos. 39-W & 40-W/2012 before the Islamabad High Court wherein a direction was issued to the respondents to record the submissions of the petitioners and pass a speaking order on their representation. However, ultimately the request of the petitioners was turned down by the respondent No. 2 i.e. Ministry of Finance vide order dated 30.04.2012. Being dissatisfied with the decision of the representation, the petitioners filed Writ Petition No. 3805/2012 before the Islamabad High Court but the same has been dismissed vide impugned order dated 24.04.2019. Hence, this petition seeking leave to appeal. 3. Learned counsel for the petitioners contended that vide order dated 13.10.1997, the Prime Minister had accorded approval to a summary whereby the employees of the newly created National Highway and Motorways Police were given special allowance equal to one extra pay on a monthly basis but the Ministry of Finance while rejecting the representation of the petitioners vide order dated 30.04.2012 did not take into consideration this aspect of the matter. He contended that this deviation is not only unlawful but is ultra vires the Constitution. Contends that there is no distinction between the regular and deputationist employees and both these categories cannot be treated differently. Lastly contends that the impugned judgment passed by the learned High Court is against the well settled principles of law, therefore, the same may be set at naught. Civil Petition No. 2944/2019 -: 3 :- 4. We have heard learned counsel for the petitioners at some length and have perused the record with his able assistance. It is an admitted fact that the petitioners are not the regular employees of the National Highway & Motorways Police and they only served as deputationists on different posts at different intervals. So far as the officials transferred to National Highway and Motorway Police on deputation basis are concerned, their terms and conditions have been settled vide office memorandum dated 05.08.1997. On our specific query, learned counsel for the petitioners admitted that at the time of their deputation, the petitioners were duly informed about the terms and conditions of service being deputationist but they never raised any objection at that time. Although in the said office memorandum, the officials on deputation have been held entitled to several allowances but it is nowhere mentioned that the special allowance of one month’s pay will also be admissible to them. The learned High Court has rightly observed that both the categories of regular and deputationist employees are distinct and the petitioners do not enjoy the status of regular employees. The main stay of the arguments of learned counsel for the petitioners was in the order dated 13.10.1997 passed by the Prime Minister wherein he had accorded approval of one extra pay on a monthly basis to the officials of motorway police but he failed to take notice of the fact that the same was meant for regular employees only, whose terms and conditions are governed under separate package. Even otherwise, we have noticed that the order dated 30.04.2012 of the Ministry of Finance clearly mentions that in a summary dated 09.05.2008 submitted by Ministry of Communications, the Prime Minister had not approved the demand of the petitioners for payment of special allowance equivalent to regular employees of Motorway Police because they are already enjoying extra benefits such as (i) one step promotion as compared to their parent department, (ii) deputation allowance @ 20% and (iii) special allowance @ 20% of the basic pay. We have been informed that the petitioners have been reverted back to their parent department long ago and they are now performing duties in their parent department. Learned counsel for the Civil Petition No. 2944/2019 -: 4 :- petitioners could not point out any reason on the basis of which such extra burden on public exchequer could be justified when already the petitioners were enjoying extra benefits as compared to regular employees. Neither any legal right was available with the petitioners to claim such benefits nor the question of infringement of any vested right of the petitioners had arisen. In these circumstances, no case for interference is made out. The impugned judgment is well reasoned, proceeds on correct principles of law on the subject and does not require any interference by this Court. This petition having no merit is accordingly dismissed and leave to appeal is refused. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 18th of August, 2022 Approved For Reporting Khurram

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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed Mr. Justice Qazi Faez Isa Mr. Justice Maqbool Baqar Civil Petition No.29 of 2017 [On appeal against the judgment dated 17.11.2016 passed by the Peshawar High Court, Peshawar, in Writ Petition No.1032-P of 2016] Muhammad Aamir Khan …Petitioner(s) Versus Government of KPK through Senior Member Board of Revenue, KP & others …Respondent(s) For the Petitioner(s) : Mr. Muhammad Iqbal Khan Mohmand, ASC For Respondents No.1-5 : Mr. Zahid Yousaf Qureshi, Addl.A.G. KP For Respondents No.6-7 : Nemo Date of Hearing : 24.04.2019 JUDGMENT GULZAR AHMED, J.— The petitioner is aggrieved by the impugned judgment dated 17.11.2016 passed by the learned Division Bench of the Peshawar High Court, Peshawar, by which the Writ Petition No.1032-P of 2016 was dismissed. 2. We have heard Mr. Muhammad Iqbal Khan Mohmand, learned ASC for the petitioner and have also gone through the record. 3. The petitioner has filed Writ Petition with a prayer that he having passed Patwar Examination, 2009, and his name having been brought on the register of pass patwar candidates, his appointment as Patwari could not have been denied on the ground of over age while allowing such appointments to his colleagues/ juniors mentioned in the partwar list. Learned ASC for the petitioner has contended that though vide notification dated 01.10.2010 upper age limit for the post of Patwari was extended to 35 years by amending existing NWFP Revenue & Estate Department (Tehsildar, Naib-Tehsildar/Subordinate Revenue C.P.No.29 of 2017 - 2 - Service) Rules, 2008 (RED Rules), but contended that these rules were further relaxed and in this respect made reference to the NWFP Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008 (Amending Rules). So far this submission of the learned ASC for the petitioner is concerned, the notification dated 01.01.2010 reads as follows: “GOVERNMENT OF NWFP REVENUE & ESTATE DEPARTMENT Dated Peshawar the 01.01.2010 NOTIFICATION No.______/Admn:VII/A. Relaxation In pursuance of the approval by the Chief Executive NWFP and in exercise of the Powers conferred by Section -26 of the NWFP Civil Servants Act, 1973 read with this Department Notification No.32102/Admin:I/135/SSRC, dated 26.12.2008, the following amendment in the NWFP Revenue & Estate Department (Tehsildari, Naib Tehsildari/Subordinate Revenue Service) Rules, 2008 (Patwari S.No.8 Appendix):- AMENDMENT The Upper Age limit for the post of Patwari is extended to 35 years by amending the existing NWFP Revenue & Estate Department (Tehsildar, Naib Tehsildar/Subordinate Revenue Service) Rules, 2008 (Patwari S.No.8 Appendix) once for all. And no provision for age relaxation over 35 years will be allowed under any circumstances by any Authority. Sd/- Senior Member Board of Revenue” This amendment as noted above, was specifically made in the RED Rules, which specifically apply to the case of patwaris. Amending Rules apparently have no application to the patwaris as the same are applicable to general employees of the provincial government. Thus, these rules having no application in the case of the petitioner, the relaxation of upper age as mentioned in these rules, relates only to the initial appointment of the general employees of the province. 4. The learned ASC for the petitioner then referred to the order dated 06.12.2017 passed by a Division Bench of the Peshawar High Court, Peshawar, in Writ Petition No.4867-P of 2017 and also an order dated 05.10.2018 passed by another Division Bench of the same High Court in Writ Petition No.1199-P of 2018 to contend that as the petitioners in these two writ petitions have been appointed as Patwaris despite they being over C.P.No.29 of 2017 - 3 - age in terms of notification dated 01.01.2010 beyond the one allowed by the notification, the petitioner be also granted similar relief. Before we deal with the question, we would like to reproduce below the relevant para of the impugned judgment wherein the High Court has dealt with the relevant laws in the matter of making appointment of Patwaris and the age relaxation to be granted to them: “5. In view of the respective stance of the parties, passing of Patwar Examination by the petitioner in 2009 and consequent entry in the relevant Patwar Register maintained by the Deputy Commissioner, pursuant to Chapter-3 Part-II Para 3.6 of the Land Record Manual is undisputed. Ibid para explicitly provides method of recruitment/appointment of Patwari which for ready reference is reproduced as follows:- 3.6 List of Patwar pass persons:(1) For each Sub- Division, a list of all Patwar Pass persons shall be maintained by the Sub-Divisional Collector/Political Assistant in Form P-I given in Appendix ‘G’ with a view to have ready information about the availability of eligible persons in the Sub-Division to facilitate filling up the vacancies. However, the appointment of Patwaris shall be made strictly in accordance with the Service Rules and the Recruitment Policy as may be applicable at the relevant time. (2) Maximum educational qualification for the Patwari is Matric/Secondary School Certificate. The name of only those persons shall be enrolled, who are bona fide residents of the concerned Sub-Division. (3) The names of the eligible persons shall be added to the list as and when the result of the Patwar Examination is received and no eligible person shall be refused enrolment. (4) The aforesaid list shall be verified and updated by the Collector concerned at least once in a years so as to exclude the name of those, who have become un-available on account of death, migration, employment on any other post, etc. (5) A separate list of Patwar Pass persons belonging to Cholistan area will be maintained by the Colonization Officer concerned to meet the requirements of the organizations.” 6. Para-3.6(1) provides in unequivocal terms appointment of Patwari shall be made strictly in accordance with the Service Rules and the Recruitment Policy as may be applicable at the relevant time which is of great significance for the purpose of instant petition. It is an admitted fact that petitioner at the time of convening the Departmental Selection Committee Meeting was over age by six months. While maximum age for appointment of Patwari has been extended to 35 years, vide Notification dated 01.01.2010 which is sufficient relaxation for the purpose of appointment, as compared to other departments. While extending age limit, it is further provided in the same notification that no provision for age relaxation over 35 years will be allowed under any circumstances by any authority. By inserting a condition, the competent authority has once for all extended the maximum age limit, for all and sundry, which is applicable without seeking any age relaxation from any concerned quarter. Further embargo has been placed on C.P.No.29 of 2017 - 4 - the authority against age relaxation including the age relaxation Rules. 7. Learned counsel for petitioner tried to make out a case of discrimination that one Asad Zaman has been appointed by extending him benefit of age relaxation. It appears that in that case Notification dated 01.01.2010 issued by the Senior Member Board of Revenue KPK was not brought in the notice nor was considered. Hence a wrong precedent cannot be made basis for agitating a right because two wrongs cannot make one right. It is settled law that things are required to be done as prescribed by law and rules on the subject and not otherwise.” 5. Thus, we note that the impugned order dated 17.11.2016 being in the field, there is no mention of the same in the orders dated 06.12.2017 passed in the Writ Petition No.4867-P of 2017 and 05.10.2018 passed in Writ Petition No.1199-P of 2018, rather it appears that while passing the order dated 05.10.2018 in Writ Petition No.1199-P of 2018 the Bench has squarely relied upon the order dated 06.12.2017 passed in Writ Petition No.4897- P of 2017. The grave aspect of the matter that has really astonished us during the course of hearing was that Mr. Muhammad Iqbal Khan Mohmand, learned ASC for the petitioner in the present petition has also appeared before the High Court in the said Writ Petitions. There is no presence of respondents’ counsel in the order nor anything written in the said order that respondents have filed any reply or even notices to the respondents have been issued by the Court. The Court in the said Writ Petitions mainly on the basis of facts, as mentioned before it, has proceeded to dispose of the petitions by granting relief to the petitioner in the Writ Petition of relaxation of age beyond the one as provided in the notification dated 01.01.2010. In the entire body of the orders of the High Court no law or rule appears to have been considered on the basis of which the petitioners in the said petitions were claiming relief and the Court passed order merely on the asking of the petitioners in the Writ Petitions without bothering to note or examine as to whether the petitioners were at all entitled to the relaxation of upper age limit or not under the relevant law and the rules made thereunder. Even the notification dated 01.01.2010 was not considered. Same mistake has been committed while passing the order dated 05.10.2018 in the above Writ Petition No.1199-P of 2018. The reading of these two orders C.P.No.29 of 2017 - 5 - regretfully shows non-seriousness of the concerned Benches in dealing with such cases before it and casually passed the orders without at all applying their mind or reading the relevant law or rules applicable to the case. It is also amazing to note that the two orders referred to above specifically go against the established rule of precedent to be applied with all rigour and force in that where there already existed in the field an order/judgment of the Division Bench on the subject which is being dealt with and considered in subsequent cases, said earlier order/judgment has to be adhered to and a different opinion from the one taken in the earlier order/judgment could not be expressed as such could only be done by referring the matter to the Chief Justice for constitution of a larger Bench. These two orders dated 06.12.2017 and 05.10.2018 are in grave violation of law and least to be expected from the high office of the Judges of the High Court for the reason that the earlier judgment dated 17.11.2016 was altogether supressed. The Judges are expected in all circumstances to be knowing the law and such is their hallmark as entrenched in the principle that ‘a Judge must wear all laws on sleeve of his robes’. 6. It is really astonishing to note that in the Writ Petition No.4867-P of 2017 the respondents have not been heard and it is not clear as to whether any opportunity of hearing to them was at all provided. In the subsequent order dated 05.10.2018, the Court has shown post-haste in deciding the Writ Petition before it just by putting on notice Mr. Mujahid Ali Khan, AAG, who happened to be present in the Court who raised no objection then and there without seeking any instructions from the respondent-department. Even in this petition, we note that no notice to the respondents was ordered to be issued before passing order dated 05.10.2018 disposing of the petition. 7. Before we further deal with the instant matter and give our final opinion as to how these two orders were dealt with, we direct the Registrar, Peshawar High Court, Peshawar, to transmit Record & Proceeding of Writ Petitions No.4867-P of 2017 & 1199-P of 2018 in a sealed cover. Such be done by the Registrar within a period of two weeks. C.P.No.29 of 2017 - 6 - 8. So far as the present case is concerned, we have noted that the High Court in passing the impugned judgment has dealt with and considered all relevant laws and rules applicable to the case of the petitioner but also taken into consideration the notification dated 01.01.2010 and thus, non-suited the petitioner as his age at the time of his turn for being appointed was beyond maximum upper age limit, the Court had no power to further relax the upper age limit for that the jurisdiction of the Court is to apply the law and rules as it appear on the statute book. The vires of law itself have not been challenged by the petitioner, thus, no deviation from the said notification could be made on any principle of law. 9. For the foregoing reasons, we find no merit in this petition, the same is dismissed and leave refused. 10. The office is directed to prepare separate file in terms of para-7 above and put up the same immediately before the Court on receipt of R&P of the above Writ Petitions. JUDGE Bench-II ISLAMABAD 24.04.2019 APPROVED FOR REPORTING JUDGE *Hashmi* JUDGE

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No. 3020 & 3021 of 2016 6 �  ت�� � � �� � ر� �ا ��ا �� �و ل�ا � � ں  � �� � �� � سا ��  �� روا ںوز� �� ل�� � � �و � ںوز  � � �� �� �ا�ا ِ�ا� ا� � �� � � ��  سا ا� ِ�ا� روا �� ِ�ا� ، �ا ِ�ا� � ت�� � �ا�رد � �ا� روا  � � �� � ہ�� ا� �ا � روا ِ �ا�رد � ع� س � �� � شز� � �� ِ��  �� ��  � �د ل� �� �� �   ��� ىر� � �� � � �ا � سا �� �� � جر� �� �  �ا�رد � �� � ر� �� سا روا � �� � � �ا� � �ا� � �� � �� � �  روا �ا� ىرو� � �� روا � �آ � ے�ز � ��ا� �� �� �  �� �� � � � �� ىرو� � ت�ِ ر� � � ہار � ف�ا ىر� � � � � سا ا� � � ٹو�ر  روا ل��   �د ر�ا � �ز ح� � ن� ہد� �ا � ڑرو� ند� � �� � � �� �ا�رد � � شز�  ۔� �� � مو� و مز� �� ٩۔ ��  � � ء� � �� �� را� � � ِ�ز ��ا ،�� ، �� �ا � ےد ل� َ ن  �او �ا �� ن�� ��د روا ھ�)��( �رو � را� ��� �� � � �� �ا �  � � �� �اد� �� � مو� � ق� �ا  � ء� � ہ�و سا روا  � ٦/٧ � ل�� سا  �ا�  �ر مو� � تا� � ى�ڈ �� ا� ں� � ں� �� ِ�ز �� روا  ۔� ١٠۔  �� � � ہ�� �� را�ا � � � � مز� � � �� ہر�ا ف� � �ا سا � ں � � سا � � � �� �ارا�� �ا� �  � روا � � تر� � � ا�� �� � � � ہو  �� ںو� ���ٔ� �رذ � را ن� و �ا�� ��  ہ�� ِ ن�� ل�ا � ہو � � � ر�ا � ِ ا روا � ف� � �ِ�� � �� � �� �ا� � �� � ے�� � � س �  �� ے� �  � � ں��ا � �� د� � � �� ف� و ن�� ف�  ف� � �ِِِ � ف� ا�  �ر� � � ����   ��� �ارا � �� �� ِ�ز ف� � � �� � � � �ا�د �وا ح� � ۔  � � ��� ��  سا � � � � �ز� � �  � سا� � �� روا �ا � �ز�  � ف�ا �� � ڑ� � � روا �� �� ٹو�ر � ہار � ل� � ےد ل� روا � ڑ� خر � �� � �� رادر� سا  C.P.L.A. No. 3020 & 3021 of 2016 7 � سا �� � � � و ب� ���  � �ےر ن�� � ۔ � �ر ق� ��� � ��ا �ا � �� ق� ��� �� ��  ِ�� � � �ا ا� ،�  � ف�ا  ف� � � ں��ا � �  ۔�  �د ِ�ز �� �� � � ��٤٢ ہ�� ن��ِا ا�  � � � �اد � � � ِ�ِ � س  تاو� ل�ا � � �ر ى�د � � سا � � �� ��ِٰ �� روا � �آ � دز � ن�� ���   روا �  �� � �� ِ�� � ر� �ز� سا  �� � � ع�ر � �ا� � ں�� را�اد ہو ا  � � � ��ر و  د� ��� و �ا� � � � � ل�ا � تاو�� ۔� � �اد ١١۔ د �ا� � � ں� � � � �ا� ز� � � �� نارود � � ىرو� �� ��و روا �ِ �� �ا � � ى�ڈ � ��� دا�� �  ِ�ا� روا � �� � ر� ��� ہو � � � �� �  � �� �ا�ا � �� نارود �ا � � � �و ل�ا � � ا� ِ�ا� � �� �� � �ذ �ِ � �ور �� ��او � � � � � � �� ے� � �� ��� � �ارذ ��� � ��    روا تار�ا �� � سا �� رد� ى�ڈ � � � �او �ا � � � �� � � � � ِ �ا� �ا روا � �� � ح�  � �ا� �او �� ءا�ا � ى�ڈا � َ ىر� �� � � ى�ڈ � � ر� �� � � سا روا �� ح� �ا� �د � � راد � � ۔��د � � �� �ا ١٢۔ ا ِ�ا� � � د� ن�� ��ِ�� ِ�ز �� � �ا �ز �ار �� � � سا ا� � �  � �� �� � �� �� �ا� نا� ��" � م� م� ى� راو� م� ت�" ہ� �� � ��� ��ر � �) �– �ا–ىڈ  ( ل�١٩٩٠ � �  �١( د �� �ر � �ز �ز� � ں��ا �  � سا روا� ر۔�ر �� ظ� �ا �و �د �ا ِ ١٣۔  ىر� � � � �آ�� �د � �او �� � ��و �او � � �� را�ا � � � �    � � � �� �د � ر� � ہو � ں� �� �ا ق� ٥٢ن�� � دا�� �  ل�١٨٨٢ � دز �  � �آ � � � �� ى�ودار� �� � �� �� �۔�  �� ل�ا � � ا� �ا�   نا�ِ" ہ�و رو� م� ہ�و �ا ")��ر � ن�� ن�� ہ� ��(PLJ)  ،  ل�١٩٨٠  � � � ٢٥٢ (ا � � �و �ن � �ا دا�� ٔ� ى�ڈ تر� �� �ا�ا ِ�ا� � � � � � ِ C.P.L.A. No. 3020 & 3021 of 2016 8  تار�ا � ق�ا � � سا روا � �ر ر�ا � � ��د �او � � � � �� ��� � ��د �ا� ى�ڈ �� �� ل�ا � نا� �� ل�ا � � � سا ۔� ز�  "ہ�و � م� م� ى� ت�")��ر ہ� � � � ِ�ا�(SCMR)  ل�٢٠٠٧ � �� ، ٧٦١�۔ (۔ � � �و ا � �� � �او � ط� سا �ا�� � �� ِ�و �� � �ا � ��د � �� � � �� ناروِ ��ا ر� ى�ڈ ءا�ا �اور�� � �ا� � � �� �د � � ����ا� ۔�� �   �� �اد� ر�ر �� � روا ل� � � ر� � ا� �ا��� �� � ۔ � �� � جر� ��  � �د � � سا � � روا �� �ر � � � راد��� �ر� � � ص� و � ��ا روا ز� �  روا ��� � �� � �� � � �� ر� �� � � � � �د م� � ص�ا ب��  � ن�� ا�آ � روا � � �ا � �� ��� ١٢ � ل�  � ىز� �� � ر� ىرو� � �ور ��� �� �ا ہو ا� ۔ � ��ا � � ل� ��� ر�١ � ��،  �� ِ�ا� �و�ور  ر�ا٢ ��ا ، �ر � �� � � � � �ا � � سا �� ِ�ا� روا ے� ادا ہ�  را�ر)ر�ا �ا�(ن�� � ِ�ا� ، �� � � � � �� ےر� � � ے� ل�را �  � رواٗہ۔�� �� � �ز� � ا� �ا��  ٹ�: ت��وِ� ےر� �� �� � ى��ا�ر� ١٠۔٠١۔٢٠١٧ � � � � �� � �� � � �ذ � � �� �ا�ود:۔ “For the reasons to follow, leave is declined and the petition is dismissed.” ١٤۔ �ا� � �� � ھ� � ��روا۔� � � ،د�آ م�ا١٠،ىر�٢٠١٧� )ر� � � ��ا( ر� 

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{'id': 'C.P.L.A.3020_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Amin-ud-Din Khan Civil Petition Nos.302, 579 & 580 of 2019 (Against order dated 14.12.2018 passed by High Court of Sindh at Karachi in C.Ps. Nos.D-5118 of 2018, D-4279 of 2018 & D-2569 of 2016) Muhammad Jawed Hanif Khan (in C.P. No.302 of 2019) Chairman NAB (in C.P. No.579 & 580 of 2019) …Petitioner(s) Versus NAB Sindh & another (in C.P. No. 302 of 2019) Ameer Ali Brohi & another (in C.P. No. 579 of 2019) Muhammad Iqbal & another (in C.P. No. 580 of 2019) …Respondent(s) For the Petitioner(s): Mr. Munir A. Malik, Sr. ASC Mr. Muhammad Kassim Mirjat, AOR (in C.P. No.302/2019) Mr. Sittar Sahil, Special Prosecutor NAB Mr. Ausaf Talpur, Deputy Director NAB (in C.P. Nos.379 & 580 of 2019) For the Respondent(s): Mr. Sittar Sahil, Special Prosecutor NAB Mr. Ausaf Talpur, Deputy Director NAB (in C.P. No.302 of 2019) For Respondent No.1 Mr. Khaleeq Ahmad, ASC (in C.P. No.579 of 2019) For Respondent No.1 Mr. S.M. Iqbal, ASC (in C.P. No.580 of 2019) Date of hearing: 27.11.2019 ORDER Qazi Muhammad Amin Ahmed, J. Behind bars since 30-7-2018, Muhammad Jawed Hanif Khan, petitioner herein, seeks admission to bail; he is amongst the array of accused in NAB Reference No.22 of 2018. It is alleged that being at the helm as Chairman Karachi Port Trust from 30-7-2012 to 2-9-2013, he instrumented regular appointment of 940 stipend employees in derogation of the rules, costing public exchequer a sum of Rs.2,855,917,894/-. Principal accused Babar Khan Ghouri, the then Civil Petition Nos.302, 579 & 580 of 2019 2 Federal Minister for Ports and Shipping, Govt. of Pakistan is still away from the law. Alongside the petitioner, Muhammad Sparas, Deputy Secretary/Ex-Director Gawadar Port and Rauf Akhtar, Ex-General Manager, Karachi Port Trust are behind the bars whereas Muhammad Iqbal and Ali Brohi, Managers Human Resource Karachi Port Trust were admitted to bail in anticipation to their arrest vide the impugned order dated 14.12.2018. Impugned appointments were purportedly made pursuant to directive dated 20-12-2012 issued by Babar Khan Ghouri co-accused in pursuance to an announcement statedly made by the then Prime Minister calling for regularization of all temporary employees, working in the ministry, PQA & KPT, etc. with immediate effect; it is numbered as PMDIR/2255/DS(Imp)PAW/12 dated 10.12.2012. In this backdrop, it is mainly argued that the petitioner unsuspectingly complied with the command issued by the highest authority in the realm, conveyed to him through ministerial channel and, thus, without an axe to grind, he delegated the task to his subordinates to carry out the exercise and, thus, in the absence of mens rea, the petitioner cannot be saddled with the criminality of the transaction, more so in the absence of any evidence to even obliquely suggest receipt of any financial benefit therefrom. Petitioner’s subsequent contest for a seat of Provincial Assembly on the party ticket of Muthida Qoumi Movement has been cited as a motive behind his prosecution by the learned counsel while concluding his submissions. The learned Law Officer has faithfully contested the plea for bail; while referring to petitioner’s subsequent electoral pursuit, he has attempted to demonstrate a subsisting nexus between the petitioner and the absconding former Federal Minister; the bottom line is that the petitioner being a conscious privy in the crime and in the absence of any circumstance suggestive of hardship, he cannot be enlarged on bail in a trial, otherwise likely to conclude soon in view of short number of witnesses, arrayed to drive home the charge. 3. Heard. Record perused. 4. Compliance by a Civil Servant with void or illegal orders/directions, issued by his superiors, cannot be received as a valid defence nor such a plea can absolve him from the fall out of consequences of an illegal act; his primary responsibility is to the Republic and not to his superiors or political masters of the time; he is viably entrenched by statutory protections and, thus, is required by law to maintain his independence as well as subservience to the Civil Petition Nos.302, 579 & 580 of 2019 3 law. However, in order to ensure a fair deal, we will not comment upon petitioner’s role in the impugned transaction, an issue to be essentially settled by the learned Accountability Court on the strength of evidence alone. The learned High Court allowed bail to Muhammad Iqbal and Ameer Ali Barohi in anticipation to their arrest, an extraordinary protection, on the ground that they, being at a lower rung, haplessly followed Ministerial directions passed on through proper channel and as such determination of their culpability was consequent upon recording of evidence, reasons that fail to commend approval. Preponderance of the charge notwithstanding, it would be rather out of place to inter se quantify the endurance level of the accused, each placed in a subordinate position, though differently, to resist the Ministerial pressure in terms of suggested quantification of culpability. National Accountability Bureau has sought cancellation of bails granted to Ameer Ali Brohi and Muhammad Iqbal vide two separate petitions i.e. CPLA No.579 and 580 of 2019, former barred by seven days, for reasons far from being acceptable, therefore, partial interference being most anomalous, status quo of equality is the only expedient option, benefit whereof cannot be denied to the petitioner as well. Sauce for the goose is sauce for the gander. Civil Petition No.302 of 2019 is converted into appeal and allowed. The petitioner is admitted to bail subject to his furnishing solvent surety in the sum of rupees one million with two sureties each in the like amount to the satisfaction of the learned trial Court alongside his passport. The learned trial Court is directed to conclude the trial with all convenient dispatch, in the fullness of time, sooner rather than later. Civil Petition Nos.579 and 580 of 2019 are dismissed. Judge Judge Judge Islamabad 27th November, 2019 Not approved for reporting Azmat/-

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{'id': 'C.P.L.A.302_2019.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE YAHYA AFRIDI MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Civil Petition Nos.3031/2021, 1183/2021, 1184/2021 and 1290/2021 (Against the order dated 17.03.2021 in Const. P.D-665/2019, 469/2020, 358/2020 and order dated 10.3.2021 in Const. P. No.D-598/2019 passed by the High Court of Sindh) Maqbool Ahmed Mahessar & 2 others (in C.P.3031/2021) Hafiz Suhail Ahmed & 3 others (in C.P.1183/2021) Muhammad Pariyal Solangi (in C.P.1184/2021) Nasrullah (in C.P.1290/2021) …Petitioner(s) Versus NAB through its Chairman and others (in all cases) …Respondent(s) For the Petitioner(s): Mr. Mohammad Kassim Mirjat, ASC/AOR (In CP.3031/2021) Mr. Zulfiqar Khalid Maluka, ASC (In CP.1183, 1184,1290/2021) For the NAB: Abdus Sattar Awan, Special Prosecutor, NAB. (in all cases) Date of hearing: 04.05.2021 ORDER Qazi Muhammad Amin Ahmed, J.- Issue raised in the captioned petitions is identical with the one earlier attended and disposed of by this Court in a good number of cases, vide order dated 14.04.2021 whereby bail petitions both pre as well as post arrest, in different NAB references, allowed by a learned Division Bench of High Court of Sindh at Sukkur Bench, in lieu of deposit of amounts allegedly embezzled by the accused named therein, were remitted for decision afresh in accord with the law declared by this Court in the case of Talat Ishaq Vs. National Accountability Bureau (PLD 2019 Supreme Court 12). 2 Civil Petition Nos.3031/2021, 1183/2021, 1184/2021 and 1290/2021 From amongst the petitioners, Hafiz Sohail (C.P.1183/2021), Muhammad Pariyal Solangi (C.P.1184/2021) and Nasrullah (C.P. 1290/2021) are not in attendance, statedly, on account of Covid restrictions, standing in impediment to their journey to the Court; their attendance is dispensed with; they, along with co-accused, present before the Court, by impugned orders, each structured on consent, have been admitted to pre-arrest bails in different NAB references with a direction to furnish deposits equivalent to the amounts allegedly embezzled by them at the cost of public exchequer. Such directions for release of an accused on bail have since been held by this Court as ultra vires in judgments more than one. An accused seeking bail desires transfer of his custody from Superintendent of the Jail, where he is confined, to his surety who undertakes his production as and when required by the Court and for that he has to make out a case in accordance with the law applicable thereto; he cannot be allowed or required to barter his freedom. In the supra case considerations for grant of post arrest bail to an accused confronting charge under the NAB Ordinance have clearly been illustrated, therefore, an accused facing indictment in a NAB reference has to qualify the parameters set down in the supra case; there is no other way out. Similarly, grant of pre-arrest bail in a cognizable/non-bailable offence is a remedy, most extraordinary in the nature of judicial protection, extended by diverting usual course of law for the sole purpose of protecting reputation and honour of an innocent citizen, being hounded through abuse of process of law for purposes sinister and oblique; the protection is based upon equity and cannot be extended in every run of the mill criminal case prima facie founded upon incriminatory evidence, warranting custody for investigative purposes. The protection was devised in Hidayat Ullah Khan’s case (PLD 1949 Lahore 1) and the principles laid down therein are being faithfully followed till date; impugned orders being inconsistent therewith cannot sustain. Petitions are converted into appeals and allowed; orders impugned are set aside. Bail petitions filed by the appellants before the High Court of Sindh shall be deemed as pending for decisions afresh; they shall remain on ad-interim bail upon furnishing bonds in the sum of Rs.500,000/- with one surety each in the like amount to the satisfaction of Deputy Registrar 3 Civil Petition Nos.3031/2021, 1183/2021, 1184/2021 and 1290/2021 (Judicial) of Sukkur Bench before fall of 3rd week of the month; they shall appear in person before the Court on a date notified by the office. It is expected that the petitions shall be decided/disposed of with all convenient dispatch on their own merits having regard to the law declared by this Court. Judge Judge Judge Islamabad 4th May, 2021 Azmat/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE QAZI FAEZ ISA. MR. JUSTICE IJAZ UL AHSAN. Civil Petition No.3068 of 2017 Against judgment dated 04.08.2017 of High Court of Sindh at Karachi, passed in Constitution Petition No.S-303 of 2010. Muhammad Iqbal Haider Petitioner(s) VERSUS 1st ADJ, Karachi Central & others Respondent(s) For the Petitioner(s): Raja M. Ibrahim Satti, Sr.ASC Syed Rafaqat H. Shah, AOR For Respondent No.3: In person. Date of Hearing : 27.09.2017. O R D E R IJAZ UL AHSAN, J-. The petitioner seeks leave to appeal against judgment dated 04.08.2007 rendered by High Court of Sindh at Karachi. Through the impugned judgment, a Constitution Petition bearing No.S-303 of 2010 filed by the petitioner was dismissed. 2. Briefly stated the facts necessary for decision of this lis are that Respondent No.3 filed an application under Section 15(2) of the Sindh Rented Premises Ordinance, 1979 (SRPO) against the petitioner claiming to be owner of the rented premises (subject matter of the dispute). She sought his eviction on the grounds of default in payment of rent and unauthorized commercial use of the rented premises. The Rent Controller seized of the matter passed an order dated Civil Petition No.3068 of 2017 2 17.07.2008 under Section 16(1) of the SRPO (“tentative rent order”) directing the petitioner to deposit arrears of rent for the past three years amounting to Rs.450,000/- within a period of 25 days of the date of the order and also to deposit future rent. This order was assailed by the petitioner before the High Court of Sindh at Karachi through a Constitution Petition bearing No.S-346 of 2008. Initially, operation of the order of the Rent Controller dated 17.07.2008 was suspended vide order dated 11.08.2008. (This was the last day for deposit of rent as ordered by the Rent Controller). However, subsequently the Constitution Petition was dismissed on 29.08.2008. Aggrieved of such dismissal, the petitioner approached this Court through Civil Petition No.1193 of 2008 in which vide order dated 22.09.2008, the order of the High Court as well as that of the Rent Controller were suspended. Subsequently, the Civil Petition was also dismissed in terms of judgment dated 09.06.2009. A Review Petition (CRP No.33- K of 2009) was filed but the same was withdrawn on 02.02.2010. 3. It appears that while the aforenoted matters were pending, Respondent No.3 filed an application under Section 16(2) of the SRPO before the Rent Controller praying that the defence of the petitioner may be struck off as he had failed to comply with the order for deposit of tentative rent. Vide order dated 03.12.2009, the Rent Controller accepted the application, struck off the defence of the petitioner and directed him to handover vacant physical possession of the Civil Petition No.3068 of 2017 3 rented premises to Respondent No.3 within a period of 45 days from the date of the order. 4. The petitioner being aggrieved of this order filed an appeal which was dismissed. The Constitution Petition filed before the High Court to assail the appellate judgment also met the same fate. Hence, this Civil Petition for Leave to Appeal. 5. The learned counsel for the petitioner contends that the Rent Controller as well as the High Court erred in law in passing and upholding the order relating to payment of tentative rent without first deciding the question of ownership of Respondent No.3 and her title in the property in question. He maintains that admittedly suits for specific performance as well as cancellation of sale deed had been filed by the mother of the petitioner against Mst. Nasreen Jehan Ghori (Respondent No.4). She had agreed to sell the property and had entered into an agreement to sell as well as an additional agreement to sell on the basis of which the former had paid certain amounts. She had also, with the consent of Respondent No.4, retained possession of the premises. He submits that relationship of landlord and tenant had been denied by the petitioner and without resolving the said question, the order for payment of tentative rent could not have been passed. 6. The learned ASC further submits that although default had been committed in compliance of the order for deposit of tentative rent, the said amount was ultimately Civil Petition No.3068 of 2017 4 deposited on 15.06.2009 in consequence of which in his opinion the default stood cured. In this context, he has drawn our attention to an order passed by this Court in Review Petition No.33-K of 2009 to argue that this Court had permitted him to agitate all such points relating to timely deposit of tentative rent before the Executing Court. He has finally argued that notwithstanding the adverse findings recorded by this Court in its order dated 09.06.2009 in Civil Petition No.1193 of 2008, his right to agitate the same questions again in the second round of litigation when he was challenging his eviction order was still alive. In support of his contentions, the learned counsel has placed reliance on Rehmatullah v. Ali Muhammad (PLD 1983 Supreme Court 1064); Miskina Jan v. Rehmat Din (1992 SCMR 1149); Umar Hayat Khan v. Inayatullah Butt (1994 SCMR 572); and Muhammad Afzal v. Virbai (1993 CLC 1702). 7. We have heard the learned ASC for the petitioner and considered his arguments. The main thrust of the arguments advanced by him is that the relationship of landlord and tenant had been denied on the basis of the agreements to sell executed between Respondent No.4 and the mother of the petitioner. That being so and the ownership of the property being in dispute, an order for payment of tentative rent under Section 16(1) of the SRPO could not have been passed. Consequently, his defence could not have been struck off for non compliance of the said order. However, we have noted that this aspect of the matter was fully addressed by this Court in the earlier round of litigation. The Civil Petition No.3068 of 2017 5 controversy relating to denial of relationship of landlord & tenant and pendency of litigation between the parties and the legality of the order for deposit of rent was examined and definitive findings were recorded by this Court in its judgment dated 09.06.2009 in Civil Petition No.1193 of 2008 in the following terms:- 4. We have heard the petitioner as well as the learned counsel for the contesting respondent No.2 at length and have also perused the available record. We find that the institution of two civil suits by the petitioner; one for specific performance of agreement and the other for cancellation of sale deed of the respondent No.2 per se, would not be sufficient to refuse compliance of an order of the Rent Controller under Section 16(1) of the Ordinance pending final determination. Reliance can be placed on the cases of Nazir Ahmed V. Mst. Sardar Bibi & others (1989 SCMR 913), Mst. Bor Bibi V. Abdul Qadir (1996 SCMR 87), Waheedullah V. Mst. Rehana Nasim & others (2004 SCMR 1568), Haji Jumma Khan V. Haji Zarin Khan (PLD 1999 SC 1101), Khawaja Ammar Hussain V. Muhammad Shabbiruddin Khan (PLD 1986 Karachi 74), Habib Khan V. Haji Haroon-ur- Rasheed (1989 CLC 783), Gohar Ali Shah V. Shahzada Alam (NLR 1999 Civil 419), Iqbal and others V. Mst. Rabia Bibi and another (PLD 1991 SC 242) and Syed Imran Ahmed V. Bilal and another (Civil Appeal No.2230 of 2008 decided by this Court on 9.6.2009). Once the petitioner was, prima facie, shown to be inducted as a tenant of the demised premises, he could not claim any exemption from payment of rent on account of institution of suits for specific performance and for cancellation of sale deed. Article 115 of the Qanoon-e- Shahadat Order, 1984 lays down that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that his landlord had a title to such property. The relationship of landlord and a tenant is not severed even if the execution of an agreement to sell is admitted. The petitioner was not absolved of his responsibility of compliance of order passed by the Rent Controller under the provisions of Section 16 of the Ordinance for making of payment of arrears and future rent. In our view, the impugned judgment of the High Court is plainly correct to which no exception can be taken. 5. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly. 8. These questions having been finally determined between the parties by this Court, we are not persuaded to revisit the same. Further, once it was held by this Court in this very case that petitioner did not have any reason for non compliance of the order of the Rent Controller pending final Civil Petition No.3068 of 2017 6 determination of the lis, the trial Court as well as the appellate fora had no choice but to pass appropriate orders on the basis of non compliance of order for deposit of rent (which has not seriously been disputed) and in light of the judgment of this Court on 09.06.2009 in Civil Petition No.1193 of 2008. 9. We have repeatedly asked the learned counsel for the petitioner to explain the delay which occurred in compliance of the order dated 17.07.2008 passed by the Rent Controller directing for payment of tentative rent. We have also asked him to show us from the record if any attempt was made by the petitioner at any stage of the proceedings to give any reason which prevented him from complying with the order in question. However, he has been unable either to explain the delay or point to any material on record that may indicate that any attempt was made to explain such delay before any forum. It is settled law that an order passed by a Court (whether or not a party considers it just, valid and fair) has to be complied with subject to his right to challenge the same before the fora provided in law. In case of non compliance, the consequences provided in law are bound to follow. In the instant case, the order for deposit of rent passed by the Rent Controller was challenged and upheld upto this Court and it was unequivocally held that, “we find that the institution of two civil suits by the petitioner; one for specific performance of agreement and the other for cancellation of sale deed of the respondent No.2 per se would not be sufficient to refuse compliance of an order of the Rent Controller under Civil Petition No.3068 of 2017 7 Section 16(1) of the Ordinance pending final determination.” As such, the petitioner has no body but himself to blame if his defence was struck off on account of his admitted failure to comply with the order leading to an order for his ejectment from the rented premises. 10. As far as the argument of the learned counsel that delay in compliance of the order was condoned or stood cured by reason of an order passed by this Court in CRP No.33-K of 2009 is concerned, we are unable to subscribe to the same. Perusal of the order passed by this Court on 02.02.2010 by no stretch of interpretation supports the conclusion canvassed by the learned counsel. Likewise, we are unable to agree that the effect of the interim order passed by this Court in Civil Petition No.1193 of 2008 dated 22.09.2008 furnished any justification for delay in compliance of the order of the Rent Controller relating to deposit of tentative rent. It is clear and obvious that the words, “till then, subject to all just exceptions” saved the rights that had already accrued in favour of Respondent No.3 by reason of default on the part of the petitioner to deposit tentative rent as ordered by the Rent Controller. 11. Further, Civil Petition No.1193 of 2008 was ultimately dismissed on 09.06.2009 with the finding that the petitioner had no justification for non compliance of the order of the Rent Controller dated 17.07.2008. As such, we are in no manner of doubt that default on the part of the petitioner Civil Petition No.3068 of 2017 8 had neither been cured nor condoned by any Court in any proceedings. We have gone through the case law cited at the bar. We find that the said judgments have been rendered in a different set of facts and circumstances, are not intended to lay down the entire law on the subject and are clearly distinguishable. These are irrelevant and of no help to the case of the petitioner. 12. The impugned judgment of the High Court is, in our opinion, well reasoned and based upon the correct interpretation of the applicable principles of law on the subject and is unexceptionable. As such, no interference is required in exercise of our jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973. 13. For reasons recorded above, this petition is dismissed and leave refused. JUDGE JUDGE JUDGE Announced in Court on __________. Judge ISLAMABAD, THE 27th of September, 2017 ZR/*

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE FAISAL ARAB CIVIL PETITIONS NO.3078 TO 3130, 3163 TO 3180, 3184 TO 3203, 3244 TO 3258, 3263, 3285 AND 3286 OF 2016 AND CIVIL MISC. APPLICATIONS NO.6624 TO 6626, 6836 OF 2016 AND 5569 OF 2017 (Against the judgment dated 29.06.2016 of the Islamabad High Court, Islamabad, passed in ICAs No. 29, 30, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 170/2014, 994, 995/2013 & 181/2015) Muhammad Rafiullah etc. In C.P.3078/2016 Malik Muhammad Abbas etc. In C.P.3079/2016 Muhammad Hussain Khan etc. In C.P.3080/2016 Muhammad Hussain Khan etc. In C.P.3081/2016 Gul Hassan etc. In C.P.3082/2016 Shaukat Masood Zafar etc. In C.P.3083/2016 Atiqur Rehman etc. In C.P.3084/2016 Muhammad Latif Sabir etc. In C.P.3085/2016 Habib Ullah Shah etc. In C.P.3086/2016 Muhammad Ishaq etc. In C.P.3087/2016 Muhammad Akhtar Khan etc. In C.P.3088/2016 Qutub-ud-Din Soomro etc. In C.P.3089/2016 Fayyaz Hussain etc. In C.P.3090/2016 Munir Ahmad Anjum etc. In C.P.3091/2016 Karim khan etc. In C.P.3092/2016 Muhammad Muslehuddin In C.P.3093/2016 Rana Shaukat Ali Khan etc. In C.P.3094/2016 Ikram Ullah Jan etc. In C.P.3095/2016 Muhammad Rafique and another In C.P.3096/2016 Manzoor Hussain etc. In C.P.3097/2016 Syed Ehsan-ul-Haq etc. In C.P.3098/2016 Muhammad Afzal In C.P.3099/2016 Hidayat Ali Sheikh In C.P.3100/2016 Muhammad Yaqoob In C.P.3101/2016 Saleem Akhtar Butt etc. In C.P.3102/2016 Anber Badshah etc. In C.P.3103/2016 Shah Nawaz Khan etc. In C.P.3104/2016 Riaz Mehmood Qureshi etc. In C.P.3105/2016 Muhammad Tariq In C.P.3106/2016 Muhammad Jameel Anjum In C.P.3107/2016 Dr. Naheed Naz In C.P.3108/2016 Mansoor Ahmad etc. In C.P.3109/2016 Attaullah Shahid etc. In C.P.3110/2016 Nek Muhammad Javed etc. In C.P.3111/2016 Muhammad Ikram and another In C.P.3112/2016 Muhammad Ilyas etc. In C.P.3113/2016 Khizer Hayat Awan etc. In C.P.3114/2016 C.Ps.No.3078/2016 etc. -: 2 :- Anwar Shed etc. In C.P.3115/2016 Muhammad Nawaz In C.P.3116/2016 Sardar Nisar Hussain In C.P.3117/2016 Hussain Ali Khawaja In C.P.3118/2016 Syed Asghar Ali Bukhari etc. In C.P.3119/2016 Aziz-ur-Rehman In C.P.3120/2016 Jamil Khan In C.P.3121/2016 Ghulam Sarwar etc. In C.P.3122/2016 Muhammad Nawaz etc. In C.P.3123/2016 Muhammad Zafar Iqbal In C.P.3124/2016 Muhammad Qasim Shera etc. In C.P.3125/2016 Ahmad Yar Khan In C.P.3126/2016 Sareer Ahmad etc. In C.P.3127/2016 Mst. Rukhsana In C.P.3128/2016 Syed Farhat Kamal etc. In C.P.3129/2016 Amir Muhammad Khan In C.P.3130/2016 Tariq Hameed etc. In C.P.3163/2016 Syed Aley Muhammad Rizvi and another In C.P.3164/2016 Khan Nawaz Khan etc. In C.P.3165/2016 Syed Shahid Hussain etc. In C.P.3166/2016 Raazi Mufti etc. In C.P.3167/2016 Zafar Iqbal In C.P.3168/2016 Yasmeen Mehmood In C.P.3169/2016 Alamgir Ahmed Saddique In C.P.3170/2016 Manzoor Ahmad and another In C.P.3171/2016 Aziz Ahmed In C.P.3172/2016 Hassan Mukhtar and another In C.P.3173/2016 Muhammad Yaqoob In C.P.3174/2016 Gul Ajab Khan etc. In C.P.3175/2016 Abaid-ur-Rehman etc. In C.P.3176/2016 Mushtaq Ahmed etc. In C.P.3177/2016 Muhammad etc. In C.P.3178/2016 Abdul Sattar etc. In C.P.3179/2016 Tanver Raza Bhatti In C.P.3180/2016 Muhammad Sultan etc. In C.P.3184/2016 Mst. Nazir Begum etc. In C.P.3185/2016 Muhammad Ilyas etc. In C.P.3186/2016 Sheikh Talat Mehmood etc. In C.P.3187/2016 Mosam Khan Khattak In C.P.3188/2016 Abdul Rehman etc. In C.P.3189/2016 Abid Mehmood Bhatti In C.P.3190/2016 Zarai Taraqiati Bank Ltd. (ZTBL) through its President, Islamabad and another In C.Ps.3191 to 3203, 3244 to 3258, 3263, 3285 and 3286/2016 …Petitioner(s) VERSUS Zarai Taraqiati Bank Ltd. (ZTBL) through its President, Islamabad and another In C.Ps.3078 to 3130, 3163 to 3180 and 3184 to 3190/2016 Hidayat-ur-Rehman etc. In C.P.3191/2016 Rasheed Baig etc. In C.P.3192/2016 Khalil Nawaz Khan In C.P.3193/2016 Zulfiqar Ali Mallah etc. In C.P.3194/2016 C.Ps.No.3078/2016 etc. -: 3 :- Muhammad Yaqoob etc. In C.P.3195/2016 Muhammad Afsar Khan etc. In C.P.3196/2016 Atiqur Rehman etc. In C.P.3197/2016 Muhammad Amin etc. In C.P.3198/2016 Abdul Rashid etc. In C.P.3199/2016 Nek Muhammad Javed etc. In C.P.3200/2016 Hassan Mukhtar etc. In C.P.3201/2016 Abaid-ur-Rehman etc. In C.P.3202/2016 Abid Mehmood Bhatti etc. In C.P.3203/2016 Muhammad Hussain Khan etc. In C.P.3244/2016 Muhammad Irshad etc. In C.P.3245/2016 Muhammad Javed Akhtar etc. In C.P.3246/2016 Nasir Saeed etc. In C.P.3247/2016 Syed Aley Muhammad Rizvi etc. In C.P.3248/2016 Muhammad Nawaz etc. In C.P.3249/2016 Khurshid Ejaz etc. In C.P.3250/2016 Fazal Haq Khan In C.P.3251/2016 Muhammad Aslam etc. In C.P.3252/2016 Muhammad Ilyas etc. In C.P.3253/2016 Sheikh Talat Mehmood etc. In C.P.3254/2016 Syed Shahid Hussain In C.P.3255/2016 Muhammad Rahim Khan etc. In C.P.3256/2016 Noor-ul-Wahab etc. In C.P.3257/2016 Muhammad Ahmer Noon etc. In C.P.3258/2016 Muhammad Farid etc. In C.P.3263/2016 Karim Khan etc. In C.P.3285/2016 Hameed Khan and another In C.P.3286/2016 …Respondent(s) For the Petitioner(s): Mr. Abdur Rehman Khan, ASC (In C.Ps.No.3078, 3079, 3083, 3085 to 3091, 3093 and 3123 to 3130/2016) Mr. Muhammad Ikram Chaudhry, Sr. ASC (In C.Ps.No.3094 to 3121/2016) Mr. Abdul Rahim Bhatti, ASC (In C.Ps.No.3092, 3080 to 3082, 3084, 3122, 3163 to 3180, 3184 to 3190/2016) Mr. Muhammad Shoaib Shaheen, ASC (In C.Ps.No.3191 to 3203, 3244 to 3258, 3263, 3285 & 3286/2016) For the applicant(s): Mr. Muhammad Ikram Chaudhry, Sr. ASC (In C.M.As.No.6624 to 6626/2016) Mr. Abdur Rehman Khan, ASC (In C.M.A.6836/2016) Ch. Imtiaz Ahmed, ASC (In C.M.A.5569/2017) For the Respondent(s): Mr. Muhammad Shoaib Shaheen, ASC (In C.Ps.No.3078 to 3130, 3163 to 3180, 3184 to 3190/2016) Date of Hearing: 22.11.2017 ... C.Ps.No.3078/2016 etc. -: 4 :- ORDER MIAN SAQIB NISAR, CJ.- For the reasons to be recorded later, these cases have no merit and are hereby dismissed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 22nd of November, 2017 Not approved for reporting Waqas Naseer

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Civil Petition No.3097/2015 and Civil Appeal No.1074/2015 (On appeal from the judgments dated 29.9.2015 passed by the Peshawar High Court, D.I.Khan in C.R.No.65-D/2014 & CR-93-D/2014). Abdul Hameed …Petitioner/Appellant (In both cases) Versus Jahangir Khan ..Respondent (In both cases) For the petitioner/appellant: Syed Mastan Ali Shah, ASC Mr. Mehmood A. Sheikh, AOR (In both cases) For the respondent: Malik Qamar Afzal, ASC (In both cases) Date of hearing: 09.7.2020 JUDGMENT Mazhar Alam Khan Miankhel, J-. A piece of land measuring 100 kanals situated in village Yaara Manjhi Khel, Tehsil & District Dera Ismail Khan (fully described in the plaint) was given to one Abdul Hameed son of Haq Nawaz (the petitioner) as a grant under Para-18(3) of ‘The Land Reforms Regulation, 1972’ (M.L.R. No.115) and a mutation No.204 was also attested on 22nd of June, 1992 in his favour. The same accordingly was incorporated in the revenue record in the name of petitioner. This mutation and its incorporation in the revenue record made the petitioner a full owner of C.P.No.3097/2015, etc 2 the land. The suit land and most of the adjoining lands are admittedly barren lands since long and as such recorded as ‘banjar qadeem’ in the revenue record. Such barren lands under the law, are shown in possession of the owners and the petitioner being owner was also recorded as in possession of the land as reflected in copy of Record of Rights and khasra girdawari (Ex-PW-1/1 and Ex-PW-1/3 respectively). The only source of irrigation in the area is heavy rains. The petitioner in the year 2008 entered into an agreement to sell (the agreement) regarding the landed property referred above (the property) with one Jahangir Khan son of Muhammad Anwar (the respondent) against a sale consideration of Rs.7,00,000/- (Rupees seven lac). The sale consideration so agreed was paid to the petitioner as per details given in the sale agreement (Ex-PW-5/1). The agreement also contained a penal clause that in case vendee fails to pay the balance amount i.e. Rs.2,00,000/- (Rupees two lac) within the stipulated time, (20th March, 2009), the earnest money of Rs.5,00,000/- (Rupees five lac) would stand forfeited and the agreement would be deemed cancelled. Besides the above, a penal clause for the vendor was also there that if the vendor fails to perform his part of the agreement, he would be liable to pay back the sale consideration he received and would also be liable to pay Rs.500,000/-(Rupees five lac) as compensation. 2. The respondent was constrained to file a suit for declaration/possession/specific performance on failure of the petitioner to abide by the commitments he made through the agreement. The respondent in his suit alleged his complete ownership of the property after completion of sale, delivery of possession of the property and payment of entire sale consideration. So, also asked for a declaration besides specific performance of the agreement. The petitioner through his C.P.No.3097/2015, etc 3 written statement denied altogether the very existence of the agreement by alleging the same as fake and frivolous. After a regular trial, suit of the respondent was decreed by Civil Judge-V-Dera Ismail Khan vide his judgment and decree dated 10th September, 2012. The petitioner being aggrieved, filed an appeal against the same. The appellate court modified the judgment and decree of the trial court and disposed of the appeal in the following terms:- “i. Defendant/appellant Abdul Hameed is obliged to either get the sale completed through attestation of mutation in favour of plaintiff Jehangir Khan within one month from the date when instant decree attains finality or he may opt to return the sale price Rs.700,000/- alongwith Rs.500,000/- as compensation to plaintiff within the same period. Defendant shall convey which of the two options he would exercise before the Executing Court. ii. If defendant does not exercise any of the said options, mutation shall be attested within one month of finality of decree and suit land shall become the ownership of plaintiff absolutely to the exclusion of defendant. If plaintiff is not already in possession, he shall immediately be placed in possession thereof thereafter. iii. In case defendant opts to pay back the sale price and compensation, the agreement between the parties shall stand rescinded and if possession is with plaintiff, it shall revert back to defendant at the time of payment of said amount. iv. Since defendant took a frivolous defense, he shall also pay to plaintiff the cost of suit and this appeal alongwith compensatory cost of Rs.10,000/”-. The manner and the mode, the appeal was disposed of by the appellate court, both the petitioner and the respondent filed their separate Civil Revisions before the Peshawar High Court, Bench Dera Ismail Khan. Civil Revision filed by the respondent (CR-93-D/2014) was accepted resulting in restoration of trial court’s decree while Civil Revision of the petitioner C.P.No.3097/2015, etc 4 (C.R.No.65-D/2014) was dismissed through a common judgment and decree dated 29th September, 2015. 3. The petitioner still not satisfied with the findings, filed a Civil Petition for Leave to Appeal of this Court against dismissal of his Revision Petition ibid and a direct appeal against acceptance of respondent’s Civil Revision ibid but the judgment and decree dated 29th September, 2015 of both the Civil Revisions, impugned herein, is common. So, we would also like to decide both the matters (C.P. 3097/2015 & C.A.1074/2015) through this single judgment. 4. We have heard the learned counsel for the parties and have gone through the entire record of the case. 5. Perusal of the record reveals that the bone of contention between the parties is an agreement to sell dated 18th December, 2008 (Ex-PW-5/1). The respondent being beneficiary of the agreement and fully aware of the bounden duty laid down by the law on him, has fully proved the transaction between the parties, execution of the agreement and its contents by producing one Ayaz Balouch (PW-2), the scribe, Haji Shams-ud-Din, (PW-3), the property dealer/middleman/negotiator of the transaction between the parties, witness of making payment of sale consideration to petitioner/vendor through his hands and also the attesting/marginal witness of the agreement, Abdul Waheed, (PW-4), the other attesting/marginal witness to the agreement. To further strengthen the above evidence, respondent also appeared as a witness, PW-5. The stance of the petitioner was a simpliciter denial and he also tried to take a shelter under MLR 115 regarding a ban/bar of alienation of land received in grant, for a specific period. Copy of mutation No.204 attested on 22nd June, 1992 (Ex-DW-1/1) was brought on the record by Abdul C.P.No.3097/2015, etc 5 Qadeem ADK/DW-1. DW-2 Fazal-ur-Rehman, Gardawar, produced a letter showing the names of proposed villages falling in the command area of Gomal Zam Canal/project, whereas petitioner himself appeared as DW-3. 6. Perusal of the entire evidence and the available record makes it abundantly clear that there was an agreement to sell between the parties and the petitioner had tried to deceive and mislead by denying the transaction but he miserably failed in his attempt to rebut the evidence led by the respondent. Simple denial in such like situations cannot be considered as sufficient to ignore the material evidence available on the record. Record of the case shows that no criminal or civil proceedings whatsoever were initiated by the petitioner against the respondent or the petition-writer who scribed the said agreement to justify and support his stance of denial. CNIC number of the petitioner was there alongwith his signatures on the agreement (Ex-PW-5/1) and there is no explanation and any action by him in this regard. Record produced by PW-2, would also reflect that brother of the petitioner, who also being a grantee of similar piece of land with same terms, had sold away his property to respondent against the same amount of sale consideration and that agreement was also scribed by PW-2 and said Haji Shams-ud-Din was also marginal witness to that deed. The role of Haji Shams-ud-Din, what appears from the record, is not simpliciter of a attesting/marginal witness rather he being a broker/property dealer negotiated a bargain with petitioner for respondent and a look at the statement of PW-5, Jahangir Khan, respondent, makes it abundantly clear that he is a truthful witness. He has narrated the chain of events in the manner, the same happened. C.P.No.3097/2015, etc 6 7. The main stress of the learned ASC representing the petitioner was that the attestation of the agreement in question was in violation of the definition provided in Section 3 of the Transfer of Property Act, 1882 (The Act) and his other limb of argument was that the respondent being beneficiary of the agreement was legally bound to prove the execution of the deed as required under Article 79 of the Qanuna-e- Shahadat Order 1984 (Qanuna-e-Shahadat). He further argued that the petitioner being a grantee of the land in question was not legally competent to alienate his property for a specific period as contemplated in the provisions of MLR 115. 8. We have also considered the case of the petitioner from this angle. Much stress was given on the argument that the sale agreement has not been attested as per requirements of Section 3 of the Act ibid. For ease of reference the word “attested’’ provided in Section 3 ibid is reproduced here-in-below:- “3. Interpretation clause.- ………………………………………….. “Immovable property” …………………………………………………….. “Instrument” …………………………………………………………………. “Attested” in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature of mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary; (Emphasis supplied) “Registered” ………………………………… “Attached to the earth” ……………………….. C.P.No.3097/2015, etc 7 “Actionable claim” ……………………………… “A person is said to have notice……………………..” Yes! a specific mode and manner of attestation of an instrument by two or more witnesses has been provided but the matter would not end here. This only refers to the mode of attestation of an instrument. The said instrument also requires to be proved under Qanun-e-Shahadat. Once it is proved in line with the different modes of proof of a document provided by Qanun-e-Shahadat according to the facts and circumstances of the case, only then, it can be relied upon and considered in support of a person claiming benefit of the same. When we see the very evidence brought on the record to prove the sale agreement, the same makes it clear that the document has been proved in accordance with the requirements of the Qanun-e-Shahdat, the scribe, the marginal/attesting witnesses, the man who negotiated the bargain between the vendor and the vendee appeared and supported the stance of respondent. The factum of payment of sale consideration to vendor also goes un-rebutted and un-shattered. The law on the subject is very much clear and settled. We cannot confine ourselves to that definition of attestation alone which in the end provides “but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary”. Presence of other attesting witness Haji Shams-ud-Din, PW-3 has also been admitted by the witness. So, the argument of the learned counsel regarding defective attestation under Section 3 of the Act does not get any support from the record and the law. In presence of such overwhelming evidence on the record, we don’t think that the argument advanced by the learned counsel would affect validity or enforceability of the agreement. We may add further that attestation and proof of a document are two different C.P.No.3097/2015, etc 8 and distinct/independent aspects. Contract/agreement of sale need not be in writing always. It can be oral as well. Offer and acceptance of a sale contract can also be implied but when terms and conditions of a sale are reduced into writing between the parties, then in that case that document of sale requires attestation as contemplated in Section 3 of the Act. When the sale agreement gets a shape in black and white then, it requires proof in line with the different modes of proof provided in Qanun-e-Shahdat as per requirements of the case. Reference can also be made to a five Member judgment of this court in the case of Muhammad Sattar v. Tariq Javaid (2017 SCMR 98). We are living in a society wherein such like things are happening as a matter of routine. The parties due to lack of legal knowledge ask friends/persons available at the moment to sign the document as a witness and the witnesses also being unaware of the legal requirements sign the documents. We are also aware of the fact that fake and frivolous documents are also prepared by maneuvering the presence of two witnesses. We cannot shut our eyes to these aspects. These are the realities of practical life happening in the daily routine around us. Yes! If an objection regarding admissibility and genuineness of a document is raised by a party, then it will carry a heavy weight if the party denying the execution of a document does not stop there but takes a strong action under the law against the attempt made on his civil rights attached to the property. It is on the record that no such action was initiated by the petitioner against anybody and the learned counsel for the petitioner when asked during the course of arguments in this regard, he frankly conceded the fact that till date no such action has been taken. It is humanly impossible that a valuable property of a person is being fraudulently alienated and he simply denies the C.P.No.3097/2015, etc 9 execution and only defends the litigation of the person who is going to grab his property through fraudulent means. We do agree with the case law relied upon by the learned counsel in the case of Sardar Ali v. Sardar Bibi (2010 SCMR 1066) but the same in the peculiar circumstances of the case is not applicable and distinguishable. So, in view of the above discussion, we have no hesitation to hold that the respondent not only proved the execution of the document but also the contents of the document and the petitioner bitterly failed to rebut the evidence led by the respondent. 9. Now comes the last argument that the petitioner was not legally competent to enter into a bargain of sale because of ban/restrictions under MLR 115. Perusal of the record in this regard would reveal that no doubt the petitioner has taken an objection in his written statement and has also asserted the same fact in his statement before the court but besides the above there is nothing else on the record to confirm his stance. Even the order of allotment issued by the Deputy Land Commissioner has not been tendered in evidence to consider and evaluate the nature of such bar, if any. Copy of mutation No.204 ibid, Ex-PW-1/1 is also silent in this regard and shows him a complete owner without any sort of ban or restrictions. When proprietary rights are transferred in full by the government then no such bar can be imposed. If at all there was a bar on further alienation for any specific period, then that period now has elapsed during pendency of the suit and there remains no clog on further alienation when the agreement between the parties has been proved through an overwhelming evidence. We may add further that once a person enters into an agreement of genuine sale, then there remains no moral or legal justification for him to challenge the validity of such sale. He being “in pari delicto” cannot take any advantage C.P.No.3097/2015, etc 10 of any defect in sale. Sale of land (when proved) even if in violation of MLR 115 or Section 54 of the Act, 1882 ibid, cannot be held to be void ab-initio. This court is of the considered view in this regard and we can make reference to the cases of Mohd. Saeed v. Province of West Pak.(PLD 1964 SC 572), Fakhar Imam Shah v. Abdul Haq (2006 SCMR 550) and Sakhi Jan v. Shah Nawaz (2020 SCMR 832). 10. In view of the aforesaid reasons, both Civil Petition No.3097/2015 & Civil Appeal No.1074/2015 are dismissed with costs. All the pending CMAs are also dismissed. Before parting with the judgment we may add that respondent is in litigation since 2010 because of the conduct of the petitioner as reflected from the record and discussed above, process of execution of decree should be completed within three months positivity. 11. Short order of even date is reproduced herein-below for ready reference:- “For the reasons to follow, these cases (Civil Petition No.3097/2015 and Civil Appeal No.1074/2015) are dismissed”. Judge Judge Islamabad, the 09th July, 2020 Sarfraz /-‘ “APPROVED FOR REPORTING”.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITION NO. 3130 OF 2020 (On appeal against the judgment dated 01.10.2020 passed by the Islamabad High Court, Islamabad in Writ Petition No. 1536/2020) Muhammad Ali … Petitioner Versus Samina Qasim Tarar and others … Respondents For the Petitioner: Mr. Muhammad Shahid Kamal Khan, ASC a/w petitioner in person For Respondents (1-2): Nemo For the State: Mr. Jehangir Jadoon, A.G. Islamabad Mr. Fakhar Abbas, S.I. Date of Hearing: 29.09.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the vires of judgment dated 01.10.2020 passed by the learned Islamabad High Court, whereby the writ petition filed by the respondents was allowed and the FIR No. 163 dated 28.04.2020 registered under Sections 406/448 PPC at Police Station Lohi Bher, Islamabad registered against them, was quashed. 2. Briefly stated the facts of the matter are that respondent No. 1 was owner in possession of House No. 1885, Road No. 1, Phase-III, Behria Town, Rawalpindi. The respondent Nos 1 & 2 are husband and wife. The petitioner and the respondent No. 1 entered into an agreement to sell Civil Petition No. 3130/2020 -: 2 :- the said house dated 30.07.2019 for a total sale consideration of Rs.19,600,000/-. The petitioner paid an amount of Rs.65,00,000/- as earnest money and took possession of two rooms on the upper portion of the said house. The balance sale consideration of Rs.13,100,000/- was to be paid by or before 30.09.2019 with the one month grace period i.e. upto 30.10.2019. According to the petitioner, the last date for payment of balance amount was extended to 31.12.2019. Later on, he paid yet another amount of Rs.10,00,000/- and Rs.500,000/- on 15.10.2019 & 04.11.2019 respectively. However, when the petitioner approached the respondents for transfer of the house in his name on the fixed date, they declined to do so. Subsequently, it transpired to the petitioner that the respondents have sold the said house to another person. Being aggrieved, the petitioner got registered the afore-referred FIR against the respondents. Thereafter, the respondents filed Writ Petition No. 1536/2020 before the Islamabad High Court, Islamabad, seeking quashment of the said FIR, which has been allowed vide impugned judgment. Hence, this petition seeking leave to appeal. 3. At the very outset, learned counsel for the petitioner contended that pursuant to the agreement to sell, the petitioner was given possession of two rooms in the house in question where he shifted his luggage etc but the respondents sold the property to another person, therefore, committed criminal breach of trust. Contends that the learned High Court has ignored the fact that other efficacious remedies are available to the respondents, therefore, there was no justification for filing of the Constitutional petition. Contends that the impugned order is unjust and arbitrary, which has resulted in grave miscarriage of justice, therefore, the same may be set at naught. 4. No one entered appearance on behalf of the respondents to prosecute this matter. The respondents were sent notices on their previous as well as on fresh addresses but according to the report of the process server, the house was locked and the phone number was switched off. To procure the attendance of the respondents, this Court vide order Civil Petition No. 3130/2020 -: 3 :- dated 18.08.2022 directed for publication in daily ‘Jang’ but despite publication, no one appeared on behalf of the respondents. In these circumstances, we are left with no other option but to proceed with the matter on merits. 5. Learned Advocate General, Islamabad, defended the impugned order by stating that the transaction in dispute falls within the ambit of civil liability for which a civil suit is pending adjudication between the parties and the same cannot be converted into criminal liability. 6. We have heard learned counsel for the petitioner as also learned Law Officer at some length and have perused the relevant provisions of law. A bare perusal of the record reveals that the petitioner and the respondent No.1 entered into an agreement to sell the house referred above for a total sale consideration of Rs.19,600,000/-. The petitioner paid an amount of Rs.65,00,000/- as earnest money and took possession of two rooms on the upper portion of the said house. Subsequently, he paid another amount of Rs.10,00,000/- and Rs.500,000/- on 15.10.2019 & 04.11.2019 respectively. However, when the petitioner approached the respondents for transfer of the house in his name, they declined to do so and ultimately sold the said house to another person. This led to registration of FIR, detail of which has been mentioned above. The respondents invoked Constitutional jurisdiction of the High Court seeking quashing of FIR on the plea that no offence of criminal breach of trust is made out. Before proceeding further with the case, it would be in order to reproduce Section 405 PPC, which defines criminal breach of trust. The same reads as under:-- "Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law of prescribing the mode in which such trust is to be discharged, of any legal contract, express or implied, which he has made touching the discharge of such Civil Petition No. 3130/2020 -: 4 :- trust, or wilfully suffers any other person so to do, commits 'criminal breach of trust'." 7. From the bare reading of the afore-quoted provisions of law, it appears that to constitute an offence falling within the ambit of criminal breach of trust following ingredients are essential:-- (i) There should be an entrustment by a person who reposes confidence in the other, to whom property is entrusted. (ii) The person in whom the confidence is placed, dishonestly misappropriates or converts to his own use, the property entrusted. (iii) Dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. (iv) Dishonestly uses or disposes of that property in violation of any legal contract express or implied which he has made touching the discharge of such trust. 8. To constitute an offence of criminal breach of trust defined in Section 405 PPC, which is punishable under Section 406 PPC there must be an "entrustment" of property with the accused and a misappropriation of the same by him. The expression "entrustment" with the property or with any domain over the property has been used in a broader sense under Section 405 PPC. It has wide and different implications in different context. The expression "trust" in Section 405 PPC is a comprehensive expression and has been used to denote various types of relationship, like relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee. It is established law that while using the inherent powers, the High Court is to determine whether continuance of the proceedings would constitute a gross abuse of the judicial process. Both under the criminal law and civil law remedy can be pursued in diverse situations. Although they plainly overlap, they do not always exclude one another, and essentially vary in both content and impact. An act does not lose its criminal nature just because it has a civil liability. It is wrongly presumed that when a civil liability is under challenge and its discipline Civil Petition No. 3130/2020 -: 5 :- relates to civil remedy, criminal prosecution is unsustainable. This impression has been clarified by this Court while rendering a number of judgments on this subject. In the instant matter without critically analyzing the scope of quashing of FIR, we are surprised to note that the alternative remedy of filing petition under the law was not availed rather directly filing a Constitution petition calling in question the very registration of FIR was something extraordinary coupled with the fact that the contents of the crime report were totally ignored and were not taken into consideration while adjudicating the matter in hand. The fate of deciding any criminal litigation primarily without recording of evidence seems to be something which has narrow scope. However, this principle is not absolute. In an appropriate case where complete injustice has been done, a Constitutional remedy can be pressed into and that can prove to be beneficial if the contents of the same warrant interference by a Constitutional court. Even otherwise, the legal remedy provided under the statute is based upon two words used by the Legislature i.e. “possibility” and “probability”. Both these words in their entirety are sufficient to provide remedy to a sufferer of criminal litigation if at all it infringes the legal rights of any litigant on the basis of malicious prosecution. In the instant case a bare perusal of the FIR and the agreement to sell prima facie reveals that a clear allegation of entrustment and misappropriation of the property was made by the petitioner against the respondents in the FIR, which prima-facie discloses an offence under Sections 405 PPC punishable under Section 406 PPC. Admittedly, despite lapse of statutory period, the challan had not been submitted before the Trial Court, which ex-facie means that investigation had not been completed. In such circumstances, the possibility cannot be ruled out that further material may be collected for proceeding with trial. In view of the above, we are of the view that question regarding determination as to whether there was an entrustment of property, as asserted by the petitioner, could best be left to Trial Court to consider and decide in exercise of its power after recording of evidence. 9. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned judgment dated Civil Petition No. 3130/2020 -: 6 :- 01.10.2020 passed by the learned Islamabad High Court. The prosecution branch is directed that the challan of the case be submitted before the Trial Court without un-necessary delay. The Trial Court shall proceed with the matter in accordance with law. JUDGE JUDGE Islamabad, the 29th of September, 2022 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL CIVIL PETITION NO.3131 OF 2017 (On appeal from judgment dated 15.8.2017, passed by the Peshawar High Court, Peshawar, in W.P. No.1687-P of 2017) Sher Alam Khan … Petitioner (s) Versus Abdul Munim and others … Respondent (s) For the Petitioner (s) : Mr. Muhammad Akram Sheikh, Sr. ASC and Mr. M.S. Khattak, AOR For Respondent No.1 : S. Naeem Bokhari, Sr. ASC with Ch. Akhtar Ali, AOR For Respondent No.2 : Barrister Qasim Wadood, Addl. Advocate General, KPK On Court’s Notice : Rai M. Khan, D.E.O., Kohistan Mr. Aftab Ali, Accounts Officer, A.G. Office, KPK Mr. M. Ibrahim, Asstt. Accounts Officer, A.G. Office, KPK Abdul Maroof, Circle Officer, Anti-Corruption M. Jamil, ACO, Dassu Kohistan On Court’s Notice on behalf of Federation : Mr. Sajid Ilyas Bhatti, DAG Other Respondents : N.R. Date of Hearing : 23.02.2018 CP.3131/2017 2 JUDGMENT SH. AZMAT SAEED, J.- This Civil Petition for Leave to Appeal is directed against the judgment dated 15.08.2017 of the learned Peshawar High Court, whereby Constitutional Petition i.e. Writ Petition bearing No.1687-P of 2017, filed by Respondent No.1, was allowed. 2. The brief facts necessary for adjudication of the lis at hand are that Respondent No.1 contested the election for the Provincial Assembly of the Province of Khyber Pakhtunkhaw (KPK) from the Constituency PK-88, Shangla-II in the General Elections held on 11th May, 2013. The said Respondent No.1 was declared elected and notified as a Returned Candidate by the Election Commission of Pakistan (ECP). It appears that eventually the Respondent No.1 was appointed as Special Assistant to the Chief Minister, Government of KPK. 3. On 28.12.2016, the present Petitioner filed an application before the ECP purportedly under Article 6 of the Election Commission Order, 2002 CP.3131/2017 3 read with Articles 63 and 218(3) of the Constitution of the Islamic Republic of Pakistan, 1973 and Section 99 of the Representation of the People Act, 1976 (ROPA of 1976) alleging therein that Respondent No.1 was employed as a Primary School Teacher with the Government of KPK and was holding the said post and drawing salary at the relevant point of time i.e. when he filed his Nomination Papers. He allegedly resigned from such post with effect from 31.03.2013. Thus, he had been employed by the Government of KPK and two years had not passed since his resignation when he contested the elections, therefore, the said Respondent was disqualified in view of Article 63(1)(k) and further not qualified under Article 62(1)(f) having made a false declaration in his Nomination Papers. 4. The Election Commission of Pakistan after hearing the parties and examining the relevant record concluded that in fact Respondent No.1 at the time of submitting his Nomination Papers on 29.03.2013 was indeed employed as a Primary CP.3131/2017 4 School Teacher and was drawing salary as such. As per record his date of appointment in Government Service was 14.03.1987 and the date of resignation was 31.03.2013, hence, Respondent No.1 was disqualified from contesting the elections. Consequently, the ECP vide Order dated 19.04.2017 held that the Petitioner had violated Article 63(1)(k) of the Constitution as well as Section 99(1A)(k)(l) of the ROPA of 1976. Therefore, the election of Respondent No.1 was declared null and void and the Notification withdrawn. Aggrieved, the Respondent No.1 challenged the aforesaid Order of the ECP by filing Writ Petition No.1687-P of 2017 before the learned Peshawar High Court, which has been allowed vide the impugned judgment dated 15.08.2017. 5. It is contended by the learned counsel for the Petitioner that it is a matter of official record with a presumption of truth attached therewith that Respondent No.1 was employed as a Primary School Teacher for that too more than two decades when he submitted his Nomination Papers for the CP.3131/2017 5 elections to the Provincial Assembly in May, 2013, hence, was obviously disqualified. The learned counsel further contended that Respondent No.1 was admittedly appointed as the Special Assistant to the Chief Minister, KPK and was thus entitled to draw salary. It is reiterated that in the Pay Slip of Respondent No.1 as an MPA/Special Assistant to the Chief Minister, Government of KPK, the same Personal Number is mentioned as in the Pay Slip as a Primary School Teacher as well as the fact that he was in the Government Service for more than two decades. The Respondent No.1 having received the salary for several years on the aforesaid Pay Slip cannot feign ignorance of its contents to deny his employment as a Primary School Teacher. Thus, leaving no manner of doubt the Respondent No.1 was employed as a Primary School Teacher when he submitted his Nomination Papers. It is added that the findings arrived at by the learned High Court by way of the impugned judgment dated 15.08.2017 that some other person, namely, Bakht Jehan son of Jehan Faraz, had misused the educational CP.3131/2017 6 testimonials of Respondent No.1 to obtain the said employment as a Primary School Teacher and the thumb impression on the Service Book reflecting the name of Respondent No.1 matches with the thumb impression of Bakht Jehan are based on an inquiry conducted by the Anti-Corruption Establishment of the Provincial Government wherein the Respondent No.1 was a Special Assistant to the Chief Minister. Such inquiry and its findings are thus not worthy of any credence nor could form the basis of any adjudication by the learned High Court in its Constitutional jurisdiction. 6. The learned counsel further contended that the findings of the learned High Court by way of the impugned judgment dated 15.08.2017 qua lack of jurisdiction of the ECP to de-notify Respondent No.1 is misconceived and against settled law. It is the case of the Petitioner that such powers are vested with the ECP under Article 218(3) of the Constitution and as has been held by this Court in the judgments reported as Mian Najeeb- CP.3131/2017 7 ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 SC 482) and Workers’ Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681). By relying upon the aforesaid judgments, it was further contended that even otherwise, once it has been established on record that Respondent No.1 was not qualified to be a Member of the Provincial Assembly and has sneaked into the House through deliberate concealment of material facts and by making a false declaration, Respondent No.1 was disqualified under Articles 62(1)(f) and 63(1)(k) of the Constitution, this Court as well as the learned High Court are vested with the jurisdiction to pass appropriate orders under Articles 184(3), 187 and 199 of the Constitution, respectively to ensure that a disqualified person does not enter the Parliament or the Provincial Assembly. The learned counsel also contended that the learned High Court, even otherwise, has blatantly erred in law by assuming that the CP.3131/2017 8 provisions of Articles 62 and 63 of the Constitution do not apply to the Members of the Provincial Assembly. The said judgment, in this behalf, has totally ignored the provisions of Article 113 of the Constitution. 7. Sahibzada Naeem Bokhari, learned Sr. ASC for the private Respondent i.e. Respondent No.1 controverted the contentions raised on behalf of the Petitioner by contending that the ECP had no jurisdiction to pass an order de-notifying the Respondent No.1 and the same has been rightly set aside by the learned High Court by way of the impugned judgment. It is contended that with regard to an alleged pre-election disqualification, an objection could have been taken before the Returning Officer when the Nomination Papers were filed. Thereafter, an Election Petition could have been filed before the Election Tribunal constituted in terms of Article 225 of the Constitution. Other than the aforesaid remedies, the Petitioner could only have filed a writ of quo warranto before the learned High Court or this Court. In the instant CP.3131/2017 9 case, none of the aforesaid three courses of action was undertaken by the Petitioner. It is added that jurisdiction of the ECP with regard to the allegations raised by the Petitioner would cease upon the constitution of the Election Tribunal or 60 days after the elections were concluded and Respondent No.1 notified as a Returned Candidate. In the instant case, an application was filed before the ECP many years after the elections. It is added by the learned counsel that the judgments of this Court in which the ECP was directed to verify the eligibility of the Members of the Parliament are of no assistance to the Petitioner as in such cases the jurisdiction was exercised by this Court while the ECP only complied with the directions issued by the Court and was not exercising any independent power or authority. 8. Alternatively, the learned counsel contended that the conclusions have been drawn by the ECP without any evidentiary hearing and by ignoring the record. Thus, on one hand, the said Respondent No.1 was denied his Fundamental CP.3131/2017 10 Rights to a fair trial guaranteed by Article 10A read with Article 4 of the Constitution while on the other hand, the ECP has also ignored the relevant and material evidence on record. It is his case that when the allegations levelled against Respondent No.1 by way of a Press Conference held by the Petitioner alleging that Respondent No.1 was employed or had been employed as a Primary School Teacher, the Respondent No.1 on the very next day made an application to the Anti-Corruption Department, Government of KPK complaining that an offence of impersonation has been committed and somebody else by misusing the name and educational testimonials of Respondent No.1 had obtained employment as a Primary School Teacher. An inquiry was conducted which resulted in some startling revelation. It came to light that the thumb impression on the Service Book of the Primary School Teacher did not belong to Respondent No.1 but were of one Bakht Jehan as stood disclosed from the record of the National Database & Registration Authority (NADRA). It also became CP.3131/2017 11 apparent that the salary disbursed to the Primary School Teacher was recorded on a Register which did not show that any such salary had been personally received by Respondent No.1. Subsequently, the salary was disbursed through the National Bank of Pakistan (NBP). The record of the concerned Branch of NBP and the cheques utilized for drawing the money were sent to the Forensic Science Laboratory (F.S.L.) along with admitted signatures of Respondent No.1 and as per the Report of the Handwriting Expert of the F.S.L. the signatures in the Bank record and on the cheques were not that of Respondent No.1. Furthermore, as per the record, the said Primary School Teacher was 5 feet and 6 inches tall while the Respondent No.1 is over 6 feet. The aforesaid facts it was contended are self-evident which were not taken into consideration by the ECP while passing the order, which has been rightly set aside by way of the impugned judgment. The learned counsel added that more importantly, in presence of such facts and record it cannot in any event be CP.3131/2017 12 conclusively held that in fact it was the Respondent No.1 who was employed as a Primary School Teacher and his name and documents had not been misused by some other person, perhaps, the aforesaid Bakht Jehan. A conclusive finding, in this behalf, he added was not possible or permissible without recording of evidence. With regard to the Pay Slip regarding the salary drawn as an MPA and a Special Assistant to the Chief Minister, it was contended by the learned counsel that such Pay Slip was never given or supplied to Respondent No.1 and such salary was directly deposited in his account with the Bank of Khyber. Therefore, the Respondent No.1 had no knowledge that it was mentioned on his Pay Slip that he was an employee of the Government of KPK for the last two decades thus no adverse influence should be drawn against Respondent No.1. 9. The learned Additional Advocate General, KPK contended that as per the relevant record, more particularly, the evidence collected in the inquiry, it cannot be conclusively held that it was CP.3131/2017 13 the Respondent No.1 who was employed as a Primary School Teacher. The inquiry concluded, more particularly, on account of the material referred to above that in fact an offence of impersonation has been committed at the expense of the Respondent No.1 who cannot be penalized therefor being a victim. 10. Heard. Record perused. 11. By way of the impugned judgment dated 15.08.2017, a learned Division Bench of the Peshawar High Court, after referring to and reproducing in extenso various provisions of the Constitution and the ROPA of 1976, set aside the Order of the ECP, de-notifying Respondent No.1 and validated his elections as a Member of the Provincial Assembly of KPK. One of the pillars of the impugned judgment is that Articles 62 and 63 of the Constitution are applicable only to the Members of the Majlis-e-Shoora i.e. the Senate and the National Assembly and inapplicable to the Members of the Provincial Assemblies. Such finding of law has been recorded in paragraph 16 of the impugned judgment. CP.3131/2017 14 It is clear and obvious that the learned High Court has ventured to decide the lis before it by totally ignoring the provisions of Article 113 of the Constitution, which reads as follows: “113. The qualifications and disqualifications for membership of the National Assembly set out in Articles 62 and 63 shall also apply for membership of a Provincial Assembly as if reference therein to “National Assembly” were a reference to “Provincial Assembly”. 12. The aforesaid aspect of the matter obviously was not seriously contested either by the learned counsel for Respondent No.1 or by the learned Additional Advocate General, KPK. The impugned judgment appears to be anchored upon a rather shaky legal foundation. 13. The primary bone of contention between the parties was with regard to the jurisdiction of the ECP to pass an order of de-notifying a Returned Candidate several years after the elections. By referring to the various provisions of ROPA of 1976 especially Section 103AA(2) and the Constitution, more particularly, Article 225 of the Constitution, it has been held by way of the impugned judgment that a pre-election CP.3131/2017 15 disqualification or lack of qualification is to be adjudicated upon by various fora at various points of time. This aspect of the matter has very succinctly set forth by this Court in the judgment reported as Ch. Muhammad Ashraf Warraich and another v. Muhammad Nasir Cheema and others (2016 SCMR 998) in the following terms: “15. It may be observed that candidature of a candidate could be challenged under the RoPA, 1976 at three different stages, right from the day of nomination till 45 days after the declaration of the official result. First stage is pre-election challenge at the time of scrutiny of nomination papers. Challenge to the candidature could be thrown by any of the contesting candidate, their agents, proposer, seconder, electors by filing objections against any of the candidate before the Returning Officer, on the grounds enumerated in clauses (a) to (d) to subsection (3) and subsection (5A) of section 14 of the RoPA. Any decision rejecting or accepting nomination paper, passed by the Returning Officer, is subject to right of appeal before the Tribunal comprised of not less than two and not more than three High Court Judges. Appeal is required to be decided summarily within prescribed time, if time lapses, appeal by virtue of deeming provision subsection (6) thereof is deemed to be rejected. Second stage is post- election challenge to the election of returned candidate before the Election Commission of Pakistan, under section 103AA of the RoPA, 1976. Election Commission, after such summary enquiry as to grave illegality or violation of the provisions of RoPA, 1976 or the rules framed there under, may declare CP.3131/2017 16 the poll in any constituency as void and may call upon constituency to elect member, but such jurisdiction to declare the poll void, could be exercised before the expiry of sixty (60) days after the publication of result of the election (per section 42 of RoPA), where after, the Election Commission, becomes functus officio, and the returned candidate is deemed to be elected, but subject to the decision of Election Tribunal, constituted Section 57 of RoPA. Provided such challenge is thrown, by any of the contesting candidate. Third opportunity to challenge the election of the returned candidate becomes available post- ¬election, to be made by any candidate of the subject constituency, before the Election Tribunal constituted under Section 57 ibid, within forty five (45) days from the date of publication in the official gazette of the name of the returned candidate, of the subject constituency in the manner provided under the RoPA, 1976 itself.” (emphasis supplied) 14. A similar view was also expressed by this Court in the judgments reported as Bartha Ram v. Lala Mehar Lal Bheel and another (1995 SCMR 684) and Syed Fakhar Imam v. Chief Election Commission of Pakistan and others (PLD 2008 SC 730). However, it is the contention of the learned counsel for the Petitioner that in the afore-mentioned judgments of this Court has not been factored in the provisions of Article 218(3) of the Constitution. It is his case that the said Article 218(3) of the Constitution needs to be CP.3131/2017 17 interpreted dynamically so as to recognize and acknowledge the conferment of jurisdiction upon the ECP to fulfill its Constitutional mandate of ensuring free and fair elections irrespective of any limitation of a timeframe imposed by any sub-constitutional legislation, including ROPA of 1976, more particularly, Section 103 AA (2) thereof. It is also added that Article 225 of the Constitution must be interpreted and read in harmony with Article 218(3) of the Constitution. 15. Reference, in this behalf, was made to the observations made by this Court in the case reported as Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828) which is reproduced hereunder for ease of reference: “14. … a demanding duty stood cast on the Election Commission and on all others performing functions under various election laws to ensure not only that the elections were fair and honest; that no corrupt practices were practised in the elections but also that the individuals who had been declared disqualified to enter the Legislative institutions, were not allowed to break into the said houses and further that to discharge the said onerous obligations, the said functionaries had not been left at the mercy of the objectors or even of the rival candidates and that they could act in the matter even suo motu. Needless to CP.3131/2017 18 add that the Election Tribunals envisaged by Article 225 of the Constitution and performing functions under the said Act of 1976 and even this Court while acting as the Appellate Forum under section 67 of the Act of 1976, also stand charged with the same duties.” 16. The learned counsel also referred to the judgment of this Court reported as Mian Najeeb-ud- Din Owaisi and another (supra) wherein it was observed as follows: “4. … if a Parliamentarian before or after the election is disqualified on this account, he would have no right to hold the Office as a Parliamentarian/Member of the National/Provincial Assembly or the Senate and in such situation, it is obligatory upon the ECP to proceed against such person by de-notify him. …” 17. The question of availability of the jurisdiction with the ECP to decide the complaint and de-notify a Returned Candidate after the lapse of a period of sixty days provided in Section 103AA(2) of ROPA of 1976, is not without difficulty. The contentions of the learned counsel for the Petitioner cannot be simply brushed aside as frivolous. However, this aspect of the matter as canvassed by the learned counsel for the Petitioner needs not to be adjudicated upon in the instant case. CP.3131/2017 19 18. However, there can be no escape from the fact that if a person suffering from a pre-election disqualification or lack of qualification slips through the cracks and no objection is raised before the Returning Officer, no complaint is made to the ECP in terms of Section 103AA of ROPA of 1976 within the time specified therefor and no Election Petition filed before the learned Election Tribunal then the inherent disqualification of such person is obviously not cured nor can it be said that by mere absence of a challenge he acquires the qualification by lapse of time. In such circumstances, where unqualified or disqualified person manages to escape through the net and trespass into the Majlis-e-Shoora or the Provincial Assembly, the Constitutional jurisdiction of the learned High Court under Article 199 of the Constitution and of this Court under Article 184(3) of the Constitution can always be invoked. Such powers were exercised by a five Member Bench of this Court in the case reported as Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime CP.3131/2017 20 Minister’s House, Islamabad and 9 others (PLD 2017 SC 265) and in this behalf, it was observed as follows: “86. However, it is now settled law and has been so settled through a series of judgments of this Court including Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98) and Muhammad Azhar Siddiqui v. Federation of Pakistan and others (PLD 2012 SC 774) that a Constitution Petition in the nature of a writ of quo warranto is maintainable against the Member of the Majlis-e- Shoora, if he is disqualified or did not possess or has lost his qualification, in this behalf. Such Constitutional Petitions can always be filed before the learned High Court under Article 199 of the Constitution and before this Court under Article 184(3) of the Constitution, as has been filed in the instant case.” 19. A similar view was earlier expressed by this Court in the judgment reported as Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 SC 817). The jurisdiction in the nature of quo warranto was also exercised by this Court in the case reported as Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others (PLD 2018 SC 114) and a sitting Member of the National Assembly was declared disqualified in terms of Article 62(1)(f) of the Constitution read with Section 99 (1)(f) of ROPA, 1976 and de-notified. CP.3131/2017 21 Furthermore, in the case reported as Muhammad Hanif Abbasi v. Imran Khan Niazi and others (PLD 2018 SC 189) although this Court assumed similar jurisdiction under Article 184(3) of the Constitution against a Member of the National Assembly, however, these proceedings eventually failed. 20. We are aware that in the instant case, the lis has reached this Court not by invoking Article 184(3) of the Constitution (though the learned High Court was exercising its Constitutional jurisdiction under Article 199). Be that as it may, this Court is not precluded from converting one type of proceedings into another type, including the existing proceedings under Article 185(3) of the Constitution and exercising our jurisdiction under Article 184(3) of the Constitution so as to adjudicate upon disqualification or lack of qualification of Respondent No.1. This Court in the judgment reported as Muhammad Akram v. DCO, Rahim Yar Khan and others (2017 SCMR 56) held as follows: “7. The Courts are sanctuaries of justice, and in exercise of authority to do ex debito justitiae, that is to say remedy a wrong and to suppress a mischief to CP.3131/2017 22 which a litigant is entitled. No fetters or bar could be placed on the High Court and or this court to convert and treat one type of proceeding into another type and proceed to decide the matter either itself provided it has jurisdiction over the lis before it in exercise of another jurisdiction vested in the very court or may remit the lis to the competent authority/forum or court for decision on merits. Courts have been treating and or converting appeal into revisions and vice versa and Constitution Petitions into appeal or revision and vice versa.” The said view was further fortified by the judgment of this Court rendered in the case of Muhammad Jibran Nasir and others Vs. The State and others (Criminal Appeals No.1-K to 3-K of 2018 converted into Suo Motu Case No.01 of 2018), wherein it was held that: “4. … Apart from that the jurisdiction of this Court under Article 184(3) of the Constitution is an independent original jurisdiction which is not affected by pendency of any matter on the same subject matter before any other court or forum or even by a prior decision of the same issue by any other court or forum below and a reference in this respect may be made to the cases of Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Miss Benazir Bhutto v. Federation of Pakistan and others (PLD 1988 SC 416), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), Suo Motu Case No. 10 of 2009 (2010 SCMR 885), Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, CP.3131/2017 23 Islamabad (PLD 2011 SC 365), Khawaja Muhammad Asif v. Federation of Pakistan and others (PLD 2014 SC 206) and Jamshoro Joint Venture Ltd. and others v. Khawaja Muhammad Asif and others (2014 SCMR 1858). For these reasons we have converted these appeals into a Suo Motu Case under Article 184(3) of the Constitution.” (emphasis provided to simple underlining) 21. An overview of the Constitution of the Islamic Republic of Pakistan, 1973 would reveal that the most salient of its salient features is that power is to be exercised on behalf of the people of Pakistan by their chosen representatives. It is the right of the people of Pakistan to be governed by their chosen representatives which is the most fundamental of the Fundamental Right guaranteed under the Constitution. Reference, in this behalf, may be made to the judgment of this Court reported as Imran Ahmad Khan Niazi (supra), wherein it was observed as follows: “7. The foundation of our Constitutional dispensation as is evident from the Constitutional provisions, more particularly, the opening lines of its Preamble is that the Sovereignty vests in Almighty Allah and authority is to be exercised by the people of Pakistan through their chosen representatives. This is the heart and soul of our Constitution, which is also reflected in Article 17, the Fundamental Right of CP.3131/2017 24 “Freedom of association”. It is an unalienable right of the people of Pakistan to be governed by and under the authority of their chosen representatives. A right on which the entire edifice of our Constitutional and Legal Framework rests. This aspect of the matter in the context of the jurisdiction of the Court under Article 184(3) of the Constitution has been considered in various judgments of this Court, including the judgment, reported as Air Marshal (Retd) Muhammad Asghar Khan v. General (Retd) Mirza Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1), wherein it has been observed, inter alia, as follows:- “102. Above are the reasons for our short order of even date whereby the instant petition was disposed of as under:– “The Constitution of the Islamic Republic of Pakistan commands that it is the will of the people of Pakistan to establish an order wherein the State shall exercise its powers and authority through the chosen representatives of the people, wherein the principles of democracy, freedom, equality, etc., shall be fully observed, so that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world, and make their full contribution towards international peace and progress and happiness of humanity. People of Pakistan had been struggling to establish a parliamentary and democratic order since long within the framework of the Constitution and now they foresee a strong system which is established by the passage of time without any threat and which is subject to the constitution and rule of law. CP.3131/2017 25 2. The essence of this Human Rights case is based on the fundamental right of citizens enshrined in Article 17 of the Constitution. It raises an important question of public importance to enforce the fundamental rights, inter alia, noted hereinabove, therefore, in accordance with the provisions of Article 184(3) of the Constitution, jurisdiction has been assumed and exercised to declare, for the reasons to be recorded later, as under:- (1) That citizens of Pakistan as a matter of right are free to elect their representatives in an election process being conducted honestly, justly, fairly and in accordance with law. …” 22. The qualifications and disqualifications of the persons entitled to be Members of the Majlis-e- Shoora or a Provincial Assembly and thereby act as chosen representative of the people of Pakistan have been set forth in the Constitution in Articles 62 and 63 thereof as well as in sub-constitutional legislation, including ROPA of 1976. The question that floats to the surface is where a person, who is either not qualified or disqualified under the Constitution and the law from being a Member of Majlis-e-Shoora or a CP.3131/2017 26 Provincial Assembly sneaks into such House, would the Constitutional right of the people of Pakistan be infringed and violence down to the very spirit of the Constitution? 23. This Court in its judgment reported as Malik Iqbal Ahmad Langrial v. Jamshed Alam and others (PLD 2013 SC 179) held as follows: “10. … In the case of Muddasar Qayyum Nahra v. Ch. Bilal Ijaz (2011 SCMR 80) this Court had upheld the findings of Election Tribunal, Punjab whereby it was held that a person who indulges into using unfair means in procuring his educational qualifications does not deserve to claim to be an honest, righteous or Ameen person so that he be assigned the high responsibilities of performing national functions of running the affairs of the country. The spirit with which the words sagacious, righteous, non profligate, honest and Ameen have been used by the Constitution of Islamic Republic of Pakistan, 1973 for the eligibility of the candidates contesting the elections of Members National or Provincial Assembly cannot be allowed to be frustrated if persons who secure their educational documents through unfair means and are found guilty of such a condemnable act by the competent authority are allowed to be given entry into the doors of National or Provincial Assemblies of our country. The respondent (therein) is thus not worthy of credence and cannot be allowed to be entrusted with State responsibilities of Law Making; to be in- charge of the National Exchequer or be eligible to represent the people of Pakistan.” (emphasis supplied) CP.3131/2017 27 The aforesaid quotation was also reproduced with approval in the case reported as Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655). It was reiterated in the case reported as Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad-II and others (2013 SCMR 1271) and was re-emphasized in the case reported as Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089). 24. This Court in the case reported as Nawabzada Iftikhar Ahmad Khan Bar (supra) held as follows: “14. The Parliament of any country is one of its noblest, honourable and important institutions making not only the policies and the laws for the nation but in fact shaping and carving its very destiny. And here is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august House. He is guilty, inter alia, of impersonation --- posing to be what he was not i.e. a graduate. He is also guilty of having been a party to the making of false CP.3131/2017 28 documents and then dishonestly using them for his benefit knowing them to be false. He is further guilty of cheating --- cheating not only his own constituents but the nation at large.” (emphasis supplied) The aforesaid observations were reiterated in the case reported as Muhammad Rizwan Gill (supra). 25. In the case reported as Muhammad Khan Junejo v. Federation of Pakistan through Secretary, M/o Law and Justice and Parliamentary Affairs and others (2013 SCRM 1328), it was held as follows: “7. There is no doubt that the petitioner had submitted fake and bogus documents in order to become a Member of the Parliament, as such, he has not only played a fraud on the electors of his constituency but he has also cheated the Returning Officer to believe him to be graduate on the basis of fake and forged documents and such a person cannot be trusted to lead the nation as a legislature. …” 26. In the case reported as Muhammad Hanif Abbasi (supra), it was held as under: “113. Considering applicable legal criteria, it is a fundamental right of people of Pakistan that its public representatives discharge their offices in public interest and not for their personal gain. Such public officers are fiduciaries discharging a trust vested in them by the people of Pakistan for which office the attributes, inter alia, of probity, honesty, integrity and trustworthiness are constitutional requirements. The fulfillment of these conditions by the decision makers in CP.3131/2017 29 Parliament and in government is essential for the existence and progress of a democratic and law based order in the polity which is a basic feature of our Constitution. …” 27. An overview of the afore-quoted provisions of the Constitution, as interpreted by this Court through its various juridical pronouncements referred to and reproduced herein above leads to an irresistible and irrefutable conclusion that our Constitutional dispensation is erected upon the democratic principle that the authority vest with the people of Pakistan can only be exercised through their chosen representatives. Such authority, including the power of law making and control over the public exchequer is to be conferred upon the chosen representatives by way of trust and the trust can only be reposed upon those who are worthy thereof. 28. In the above context, the qualification and disqualification of persons, entitled to act as the chosen representatives of the people and to act on their behalf as Members of the Majlis-e-Shoora and the Provincial Assemblies are set forth in the Constitution itself, more particularly, in Articles 62 CP.3131/2017 30 and 63 thereof as well as other sub-Constitutional legislation. An elaborate process and procedure has been prescribed by law to filter out those who are disqualified or not qualified to contest the elections to the Majlis-e-Shoora and the Provincial Assemblies as is apparent primarily from the provisions of ROPA of 1976. With regard to pre-election disqualification, such process includes objections before the Returning Officer at the time of filing of the Nomination Papers, an application to the ECP under Section 103-A of ROPA of 1976. And subsequently, an Election Petition before the Election Tribunal established under Article 225 of the Constitution. If no objection is raised or challenge thrown or relevant proceedings initiated before the appropriate forum at the appropriate time, the disqualification of a candidate is not cured nor an abscent qualification acquired. 29. Consequently, where a disqualified or unqualified person slips through the cracks sneaks into the Majlis-e-Shoora or the Provincial Assemblies, his presence in the said House can always be challenged through exercise of the Constitutional CP.3131/2017 31 jurisdiction of this Court under Article 184(3) of the Constitution and before the learned High Court under Article 199 of the Constitution by way of a Writ in the nature of quo warranto. Even where a matter comes before this Court regarding the qualification or disqualification of a Member of the Majlis-e-Shoora or the Provincial Assemblies otherwise by way of proceedings other than under Article 184(3) of the Constitution, this Court not only has the jurisdiction to convert such proceedings to proceedings under Article 184(3) of the Constitution but is bound to do so, as to permit an unqualified or disqualified person to continue to defile and desecrate the Majlis-e- Shoora or the Provincial Assemblies and masqulate as a chosen representative of the people would amount to frustrating the Constitutional provisions. In such an eventuality, if this Court looks other way, it would perhaps constitute a failure to protect and preserve the Constitution. Thus, we find ourselves unable to decline the prayer of the Petitioner to examine the merits of the case so as to determine on the basis of the material CP.3131/2017 32 available on record whether Respondent No.1 was qualified or disqualified from being a Member of the Provincial Assembly, KPK. Any refusal on our part to avoid or evade such an exercise would constitutes a departure from the law as laid down by this Court and perhaps would even amount to a betrayal of the Constitution. Hence, we convert these proceedings into Suo Motu proceedings under Article 184(3) of the Constitution. 30. It is self-evident from the record that one Abdul Munim son of Habib-ur-Rehman, having CNIC No.15505-0222605-3 was employed as a Primary School Teacher in Kohistan. The said Primary School Teacher for the purposes of payment of salary was awarded a Personal Number i.e. 00335754. It is also common ground between the parties and as is also evident from the record that the said Primary School Teacher retired from service with effect from 31.03.2013. It is not disputed between the parties that Respondent No.1’s CNIC Number is 15505- 0222605-3. In the above backdrop, it is the case of the Petitioner that in fact it is the Respondent No.1 CP.3131/2017 33 who obtained employment as a Primary School Teacher in the year 1987 and continued to be in service till 31.03.2013 as a ghost employee, hence, he was not qualified to contest the elections held in May, 2013 or be a Member of the Provincial Assembly. On the other hand, it is the case of Respondent No.1 that by impersonating and using the Name, CNIC Number and perhaps his educational testimonials some one else obtained employment as a Primary School Teacher in Kohistan without the knowledge of Respondent No.1. 31. There is nothing on record to suggest nor it is the case of the either party that Respondent No.1 ever worked as a School Teacher and personally drew salary. In fact, there is no salary record, in this behalf, which could be directly connected to Respondent No.1. The Pay Roll Register and the Bank Account in Kohistan could not conclusively connect with Respondent No.1. 32. However, eventually the Respondent No.1 was appointed as a Special Assistant to the Chief Minister, KPK and in such capacity entitled to salary CP.3131/2017 34 from the Government of KPK. A computerized Pay Slip was generated, which is available on record that bears the same Personal Number and CNIC Number as that of Abdul Munim as the Primary School Teacher in Kohistan. More importantly, it clearly exhibits his length of service as about 20 years when coincide with the employment of Abdul Munim, as a Primary School Teacher. Respondent No.1 received such salary as Special Assistant without hesitation or protest, leaving no manner of any doubt that he was aware that he as per record was employed as a Primary School Teacher and such employment was obviously with his knowledge, consent and connivance. 33. Confronted with the aforesaid situation, the learned counsel for Respondent No.1 initially took up a plea that the Pay Slips were never communicated to Respondent No.1, hence, he had no knowledge of its incriminating contents. This Court summoned the District Education Officer, Kohistan, Accounts Officer & Assistant Accounts Officer, A.G., Office, KPK and A.C.O., Dassu Kohistan, who in unequivocal terms CP.3131/2017 35 stated that the Pay Slips as Special Assistant were in fact communicated to Respondent No.1 in the normal course. The aforesaid is reflected in the Order of this Court dated 22.02.2018. Finding it impossible to deny the service of the Pay Slips and obvious knowledge of its contents a rather belated attempt was made to set up a plea that Respondent No.1 was unable to comprehend the true import and meaning of the contents of the Pay Slips. Respondent No.1 was a Member of the Provincial Assembly and was a Special Assistant to the Chief Minister, KPK, therefore, it is, difficult to accept this after thought that he was unable to understand the contents of the Pay Slip. It appears that upon being appointed as a Special Assistant to the Chief Minister, KPK, he was entitled to draw salary from the Government of KPK. It appears that his Name, Parentage and CNIC Number was fed into the system, a Pay Slip was generated with the particulars and the same Personal Number and CNIC Number as that of the Primary School Teacher with the length of service and availability of the General Provident Fund (GPF) CP.3131/2017 36 clearly mentioned. The Respondent No.1 was served with the said Pay Slips during his tenure as a Special Assistant to the Chief Minister. He accepts the salary without making any attempt for rectification of the Pay Slip, thus, conclusively establishing that he, the Respondent No.1, was in fact employed as a Primary School Teacher at Kohistan since 1987 though he was a ghost employee. In the circumstances, a period of two years had not lapsed on 31.03.2013 the date of resignation. When he contested the elections held on May, 2013 and submitted his Nomination Papers, therefore, he was disqualified in terms of Article 63(1)(k) of the Constitution and further having deliberately concealed material facts in his Nomination Papers by failing to disclose that he was in fact disqualified under Section 63(1)(k) of the Constitution and being a ghost employee he can hardly be considered to be honest in terms of Article 63(1)(f) of the Constitution, hence, was not qualified in view of the aforesaid provisions of law. Reference, in this behalf, may be made to the judgment of this Court reported as Abdul Ghafoor Lehri (supra). CP.3131/2017 37 34. Consequently, it is held that Respondent No.1 was not qualified to be and disqualified from being a Member of the Provincial Assembly of KPK at all material times, hence, was liable to be de-notified as such by the ECP. Furthermore, he was obliged to return all the benefits i.e. salary and other allowances received by him as a Member of the Provincial Assembly and also criminal proceedings as provided under the law are also directed to be taken against him. Therefore, the impugned judgment of the learned High Court dated 15.08.2017 needs to be set aside and the Order of de-notification issued by the ECP revived. The aforesaid are the reasons of our short Order dated 23.02.2018, which are reproduced hereunder for ease of reference: “ Barrister Qasim Wadood, learned Additional Advocate General, KPK, has filed in Court four sealed envelops along with a Register containing the documents which were sent to the Forensic Science Laboratory for comparison of signatures and thumb impression of the private Respondent, namely, Abdul Munim. The said documents are taken on record. 2. The Bench will reassemble today after perusal of the said documents. CP.3131/2017 38 Late Diary: 3. For the reasons to be recorded later, this Civil Petition is converted into Appeal and the same is allowed. The impugned judgment dated 15.08.2017 of the learned Peshawar High Court, Peshawar, passed in Writ Petition No.1687-P of 2017, is set aside. As a consequence whereof, the Order dated 19.04.2017 passed by the Election Commission of Pakistan declaring election of Respondent No.1 as a Member of the Provincial Assembly, KPK from PK-88, Shangla-II as null and void and withdrawing his Notification as a Returned Candidate is revived. The salary and other allowances be recovered and criminal proceedings as provided under the law are also directed to be taken against him.” 35. The original record made available in a sealed envelope by the learned Additional Advocate General, KPK be returned to him. Judge Judge Islamabad, the 23rd February, 2018 ‘APPROVED FOR REPORTING’ Judge Mahtab H. Sheikh/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mushir Alam Mr. Justice Dost Muhammad Khan Mr. Justice Sardar Tariq Masood Civil Petition No.3181 of 2015 Against order dated 21.10.2015 of Lahore High Court, Multan Bench, Multan, passed in Writ Petition No.15261 of 2015. Zahid Iqbal Petitioner(s) VERSUS Hafiz Muhammad Adnan, etc Respondent(s) For the Petitioner(s) : Mr. Salman Akram Raja, ASC Syed Rafaqat Hussain Shah, AOR For the Respondent(s) : Mr. M. Ilyas Siddiqui, ASC Mr. M. Afzal Siddiqui, ASC On Court’s Notice : Mr. Razzaq A. Mirza, Addl.AG, Pb. Mr. M. Saeed, R.O Date of Hearing : 06.11.2015 JUDGMENT Mushir Alam, J-. The petitioner has impugned the judgment of Lahore High Court, Multan Bench, Multan, dated 21.10.2015, passed in Writ Petition No.15261 of 2015, whereby his candidature as Chairman for Union Council No.58, Tehsil Chichawatni, District Sahiwal, which was accepted by the Returning Officer on 30.09.2015 and maintained by the Election Appellate Authority, Chichawatni vide order dated 10.10.2015 was set naught. 2. Challenge to the candidature of the petitioner by the respondent was that he is disqualified to be elected as Member of Local Government as he stands disqualified from being a candidate for election to any office of a Local Government for a period of four years from the date of Civil Petition No.3181 of 2015 2 declaration on account of his holding citizenship of a foreign State within the contemplation of clause (a) of sub-section 2 of Section 27 of the Punjab Local Government Act, 2013 (hereinafter to be referred as ‘the Act, 2013’). The objections were neither accepted by the Returning Officer nor entertained by the Election Appellate Authority as noted above. Acceptance of his nomination papers was challenged through Writ Petition and learned Judge in Chambers in the High Court in consideration of the fact that the petitioner was disqualified to be elected or chosen to be a Member of Majlis- e-Shoora (Parliament) in terms of Article 63(1)(c) of the Constitution of the Islamic Republic of Pakistan, 1973 (to be referred as ‘the Constitution’) which is in para-materia to Clause (a) of sub-section (2) of Section 27 of the Act, 2013 and was declared as such by this Court in para 53 of the judgment reported as Mahmood Akhtar Naqvi v. Federation of Pakistan (PLD 2012 Supreme Court 1089), which reads as under:- “As regards Mr. Zahid Iqbal, MNA, vide order dated 18.3.2012 learned ASC appearing for Mr. Zahid Iqbal, MNA was directed to file evidence/documents/certificate issued by the competent authority in terms of British Nationality Act, 1981 to the effect that he is not a citizen of UK but he failed to do so till date despite giving time, thus we have no option but to believe that Mr. Zahid Iqbal, MNA, is holding citizenship of United Kingdom, having Passport No.300997046 of Britain.” 3. The learned Judge in the High Court, seized of the matter, declared him to be disqualified in terms of para 11 of the impugned judgment, which reads as follows:- “The perusal of all the judgments referred above leaves no ambiguity that the disqualification adjudged by the Honourable Supreme Court of Pakistan by way of judgment dated 20th of September, 2012 attained finality. In such a case clause (b) of sub-section 3 of Section 27 of “The Act, 2013” will come into play with full force in the way of respondent No.3 as he was disqualified on account of holding dual citizenship on 20th of September, 2012 and at the time of submission of nomination papers, the requisite period of four years has not expired.” Hence, this petition for leave to appeal. 4. Mr. Salman Akram Raja, learned ASC for the petitioner has contended that the petitioner admittedly earned disqualification when he contested and elected as Civil Petition No.3181 of 2015 3 Member, National Assembly of Pakistan in the General Elections, 2008 for holding dual citizenship of both Pakistan and the United Kingdom, which later on pursuant to the judgment of this Court, referred to above, he had renounced and is no more a UK citizen by virtue of certificate dated 04.10.2012 issued by the U.K Border Agency and since then he is holding undiluted and exclusive citizenship of Pakistan. It was urged that the petitioner put forth his candidature to contest election for NA.162-III, Sahiwal which challenge was not overturned by the Returning Officer and so also by the Election Tribunal, then comprised of the Judges of the High Court, which is also reported as Rizwan Zouq v. Returning Officer NA-16, SWL-III, Sahiwal (2013 CLC 271), however, his disqualification was sustained by the Lahore High Court, Lahore through judgment dated 07.05.2013 solely on the ground that since he was convicted by the Court of Sessions which conviction was still intact by that point in time. It is stated that the bar of conviction was also removed when he earned acquittal in Criminal Appeal No.210 of 2013 by the Lahore High Court, Multan Bench, vide judgment dated 26.12.2013. It is further stated that the petitioner is qualified in terms of the criteria laid down in Section 27 of the Act, 2013 and no other disqualification is attracted or could be imported from any other law to discredit his candidature, therefore, assumption of the learned Bench that disqualification in terms of Clause (b) of sub-section 3 of Section 27 of the Act, 2013 would come into play is not sustainable. 5. Learned counsel for the contesting respondent heavily relied on clause (b) of sub-section 3 of Section 27 of the Act, 2013 and strenuously argued that once a person has been disqualified by this Court in the case of Mehmood Akhtar Naqvi (ibid) such disqualification will continue to operate for a period of four years within the contemplation of above referred provision of Section 27 of the Act, 2013. When Civil Petition No.3181 of 2015 4 learned counsel was specifically asked to point out the disqualifications within the meaning of the provision of law relied upon by him, it was strenuously urged that since the petitioner had made a false declaration in the earlier elections, he is not sagacious, righteous, non-profligate, honest and ameen within the meaning of Article 62(1)(f) of the Constitution and is therefore not eligible to contest the election. It was further urged that since he was convicted by the trial Court for filing a false declaration, acquittal earned by him on technical ground will not rescue him from disqualification. To a specific question, it was candidly conceded that no appeal against such acquittal was filed. 6. Mr. Razzaq A. Mirza, learned Additional Advocate General, Punjab, does not support the impugned judgment. According to him, disqualification if at all available in terms of Section 27 of the Act, 2013 would discredit the candidature of the petitioner and will not attract disqualification for any other office including if disqualification prescribed under Article 63 of the Constitution from being elected as Member of Majlis-e-Shoora (Parliament). 7. Mr. Salman Akram Raja, learned ASC for the petitioner exercising his right of rebuttal has contended that disqualification being imported under Articles 62 and 63 of the Constitution cannot be imported and read as a disqualification under Section 27 of the Act, 2013 as there is no legislation by reference to import the qualification and or disqualification prescribed under the Constitution and or Representation of People Act, 1976 in contravention to the Act, 2013 and that import of such disqualification has been introduced under the Sindh Local Government Act, 2013 which is not the case in the instant matter. 8. We have heard the arguments and perused the record. Qualification and disqualification for a candidate and an elected Member to hold an elected office of a Local Civil Petition No.3181 of 2015 5 Government is provided under Section 27 of the Act, 2013, relevant provisions whereof read as under:- “27. Qualifications and disqualifications for candidates and elected members.– (1) A person shall qualify to be elected as a member or to hold an elected office of a local government, if he– (a) is a citizen of Pakistan; (b) except the youth member, is not less than twenty five years of age on the last day fixed for filing the nomination papers; (c) is enrolled as a voter in the electoral rolls of the ward or the local government from which he is contesting the election. (2) A person shall be disqualified from being elected or chosen as, and from being, an elected member of a local government, if he– (a) ceases to be citizen of Pakistan or acquires citizenship of a foreign State; (b) is declared by a competent court to be of unsound mind; (c) is an undischarged insolvent; (d) is in the service of Pakistan or of a local government; (e) is in the service of any statutory body or a body which is owned or controlled by the Government or a Provincial Government or the Federal Government or a local government or, in which any of such Government or local government has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from any such service, a period of not less than two years has elapsed since his resignation or retirement; (f) is under an existing contract for work to be done or goods to be supplied to a local government or has otherwise any direct pecuniary interest in its affairs; (g) has been dismissed from public service on the grounds of misconduct unless a period of five years has elapsed since his dismissal; (h) has been removed or compulsorily retired from public service on the grounds of misconduct unless a period of three years has elapsed since his removal or compulsory retirement; (i) has been convicted by a court of competent jurisdiction for a term not less than two years for an offence involving moral turpitude or misuse of power or authority under any law unless a period of five years has elapsed since his release; (j) has been convicted for an offence involving activities prejudicial to the ideology, interest, security, unity, solidarity, peace and integrity of Pakistan unless a period of five years has elapsed since his release. (3) If a person– (a) is found by the Election Commission to have contravened any provisions of subsections (1) or (2), he shall stand disqualified from being a candidate for election to any office of a local government for a period of four years; or Civil Petition No.3181 of 2015 6 (b) has been elected as a member of a local government and is found by the Election Commission to have contravened any provision of subsections (1) or (2), he shall cease forthwith to be an elected member or to hold the office of such member and shall stand disqualified from being a candidate for election to a local government for a period of four years. (4) A candidate who claims to be a Muslim shall submit to the Returning Officer the declaration given in Ninth Schedule along with the nomination papers.” 9. There are as many as 13 disqualifications prescribed under Subsection 2 of Section 27 of the Act, 2013. Such stigmatizations or disqualifications are relevant for pre- election and or post election challenge and in terms of such Subsection 3 of Section 27 of the Act, 2013 if the Election Commission finds that any of the candidate and elected member has contravened any provision of subsection 1 and or 2 thereof then such candidate will be disqualified from being a candidate for election to any office of a local government for a period of four years. This exercise is to be carried out pre-election and in case any person has been elected and subsequent to his election a challenge is thrown and it is found by the Election Commission that the person elected as Member of a Local Government has contravened any of the provisions of subsection 1 or 2 of Section 27 of the Act, 2013 then such person on such determination by the Election Commission shall be ceased forthwith to be an elected member or to hold the office of such Member and shall be slapped disqualification for a period of four years. 10. It is an admitted position that the petitioner had already renounced his UK citizenship with effect from 04.10.2012, such disqualification is not perpetual and the moment a person gives up his dual nationality, he becomes eligible to put forth his candidature for election as a member or to hold an elected office of a Local Government under the Act, 2013. Contention of the learned counsel that disqualification earned in terms of Article 63(1)(c) of the Constitution is not attracted, any perpetuity once renounced Civil Petition No.3181 of 2015 7 for all practical purposes a person who is a citizen of Pakistan in terms of Section 14 of Pakistan Citizenship Act, 1951 is a full-fledged citizen and is entitled and qualified to be elected as a Member and so also to hold an elected office of a Local Government. As far as contention of the respondent that disqualification would be inflicted for a period of 4 years in terms of clause (b) of Subsection 3 of Section 27 of the Act is concerned, it would be advantageous to reproduced sub clause 2 relied upon by learned ASCs for the respondents which reads as under:- “If a person has been elected as a member of a local government and is found by the Election Commission to have contravened any provision of subsections (1) or (2), he shall cease forthwith to be an elected member or to hold the office of such member and shall stand disqualified from being a candidate for lection to a local government for a period of four years.” With reference to the above quoted provision, when learned counsel for the respondent was quarried as to whether there is any declaration and or finding by the Election Commission that the petitioner ha contravened any provision of subsection 1 and or 2 so as to inflict a disqualification for a period of four years, it was urged that such disqualification was made pursuant to the judgment of this Court in the case of Mehmood Akhtar Naqvi (supra) PLD whereby this Court declared him to be disqualified for holding office and being Member of Majlis-e-Shoora (Parliament). 11. It was further urged that since he has made a false declaration, he is not a sagacious, righteous, honest and ameen within the contemplation of clause (f) of Article 62 of the Constitution and when he is not qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament) he cannot be chosen or elected to hold an elected office of a Local Government. This contention on the face of it is preposterous and cannot be sustained. As noted above, there is no disqualification within the contemplation of Article 62 and or 63 attracted by implication or by reference adopted within the fold of Section 27 of the Act, 2013. Disqualification on Civil Petition No.3181 of 2015 8 account of dual nationality within the contemplation of clause (a) of subsection 2 of Section 27 of the act will only continue to apply as long as any the candidate continues to hold citizenship and or nationality of any other Foreign State and the disqualification so provided under any other law including Representation of People Act, 1976 and or the Constitution by implication cannot be invoked and or read into provisions of the Act, 2013. It is not the function of the Court to read into any enactment or words that are not part of the Statute. The Court is interested to consider the provision of the Act, 2013 according to its plain meaning and not to import and or supply the deficiency of the legislation if at all any of the disqualification prescribed for any other office in any other law, same cannot be imported, added or inflicted on a person who is otherwise not within the net of such legislation. It is settled position in law that unless any provision and or law is adopted and or incorporated specifically in any provision and or legislation same cannot be read into the law or statute which is subject matter of Constitution. It is noted that disqualification for a candidate to be elected or chosen as a Member of Council (Local Government) under Sindh Local Government Act, 2013 is prescribed under Section 36 thereof. Besides, numerous disqualification some of which are in para materia to Section 27 of the Punjab Local Government Act, 2013 one of the disqualification in terms of Clause (j) to Section 36 of the Sindh Local Government Act, 2013 provides as follows:- “he is for the time being disqualified or chosen as a member of the Provincial Assembly under any law for the time being in force” 12. Thus, it could be seen that disqualification as prescribed to be chosen as a Member of Provincial Assembly by adoption and or reference is incorporated under the Sindh Local Government Act, 2013 whereas such adoption by reference is conspicuously present under the Punjab Local Government Act, 2013. Therefore, same cannot be imported from any other legislative instrument. Therefore, in view of Civil Petition No.3181 of 2015 9 the foregoing discussion the impugned judgment cannot be sustained and is accordingly set aside. 13. Above are the reasons for our short order of even date, which reads as under:- “For the reasons to follow, petition is converted into appeal and is allowed. Impugned judgment dated 21.10.2015 passed in W.P.15261/2015 by the learned Lahore High Court, Multan Bench, rejecting nomination papers of petitioner for Election of U.C. 58 Chichawatni, District Sahiwal is set aside, and order dated 10.10.2015 passed by the Appellate Authority, Local Government Election, Chichawatni, maintaining order dated 30.09.2015 of the Returning Officer, accepting nomination papers of the petitioner is restored.” Judge Judge Judge ISLAMABAD, THE 6th November, 2015 ZR/* Civil Petition No.3181 of 2015 10

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MAQBOOL BAQAR CIVIL PETITION NO.3186 OF 2015 (Against the judgment dated 15.10.2015 of the Lahore High Court, Multan Bench passed in W.P. No.15116/2015) Ghazanfar Ali Petitioner(s) VERSUS Appellate Authority/Additional District Judge, Sahiwal and others Respondent(s) CIVIL PETITION NO.3187 OF 2015 (Against the judgment dated 15.10.2015 of the Lahore High Court, Multan Bench passed in W.P. No.15117/2015) Sufiyan Akram and another Petitioner(s) VERSUS Appellate Authority/Additional District Judge, Sahiwal and others Respondent(s) For the Petitioner(s) (in both cases) : Ch. Mushtaq Ahmed Khan, Sr. ASC Syed Rifaqat Hussain Shah, AOR For Respondent No.3 (in C.P.No.3186/2015) : Mr. Ahmad Raza, ASC Mr. Ahmed Nawaz Chaudhry, AOR For Respondents No. 3-4 (in C.P.No.3187/2015) : Mr. Ahmad Raza, ASC Mr. Ahmed Nawaz Chaudhry, AOR Date of Hearing : 04.11.2015 … JUDGMENT MIAN SAQIB NISAR, J.- Both these petitions involve common questions of law, thus are being disposed of together. Through the impugned judgment(s) passed by the learned High Court in its constitutional jurisdiction, the order of the appellate authority which had rejected the nomination papers of the petitioners for contesting the local C.Ps.No.3186 & 3187/2015 -: 2 :- bodies elections, by setting aside the order of acceptance (of nomination papers) by the Returning Officer, has been upheld. 2. In the context of the above-mentioned outcome, the brief facts of the case relevant for the present petitions are:- that the petitioners were Member and Chairman respectively of the Local Zakat and Ushr Committee (Local Committee) constituted under the provisions of Section 18 of the Zakat and Ushr Ordinance, 1980 (the Ordinance). After resigning from their respective posts, the petitioners filed their nomination papers to contest the elections for the local bodies (petitioner in C.P.3186/2015 for office of General Councillor of Ward No.4, Union Council No.1 (Urban), Chak No.86-6/R, Tehsil and District Sahiwal, and petitioner in C.P.3187/2015 for office of Chairman and Vice-Chairman of Union Council No.1 (Urban), Chak No.86-6/R, Tehsil and District Sahiwal). Objections were raised against the nominations by the respective private respondents [the rival candidate(s)] on the ground that the petitioners were disqualified from contesting the elections as per the bar contained in Section 27(2)(e) of the Punjab Local Government Act, 2013 (the Act). The thrust of the objection was that according to the noted provision a person would not be qualified (or would be disqualified) to contest such election if he is in the service of a statutory body etc. and a period of not less than two years has elapsed since his resignation or retirement. It was set out by the respondents that being a Member and a Chairman of the Local Committee the petitioners were in the service of the Zakat and Ushr department which undoubtedly is a body created under the statute and thus a statutory body. The appellate authority and the learned High Court have agreed with the view point set forth by the rival candidates. In the impugned judgment, the learned High Court has, on the analysis of the relevant provisions of law, categorically held that the petitioners are hit by Section 27(2)(e) of the Act ibid as they are in the service of the Zakat and Ushr department, a statutory body and in this context the provisions of Section 23 of the C.Ps.No.3186 & 3187/2015 -: 3 :- Ordinance stipulating them (the petitioners) as public servants, read with Section 21 of the Pakistan Penal Code, 1860 (the PPC) have been heavily relied upon. Besides reliance has also been placed upon the judgments reported as Zulikha Bibi Vs. Election Commission of Pakistan through Secretary and another (2015 YLR 1584), Mirza Muhammad Tufail Vs. District Returning Officer, and others (PLD 2007 SC 16), and Muhammad Khan Vs. Amanullah and 2 others (PLD 2014 Balochistan 128). 3. Learned counsel for the petitioners, while arguing his case, has submitted that the view set out by the learned High Court in the impugned judgment is against the law laid down in Shahid Nabi Malik and another Vs. Chief Election Commissioner, Islamabad and 7 others (PLD 1997 SC 32), Inayatullah Vs. C.C.-Cum-Chairman, District Zakat Committee and 2 others (PLD 1993 SC 426), Raja Bahadur K. C. Deo Bhanj Vs. Raghunath Misra and others (AIR 1959 SC 589) and Ch. Liaqat Ali and another Vs. Election Appellate Authority/District and Sessions Judge, Lahore/District Returning Officer, Lahore and 3 others (2001 YLR 953). Learned counsel, for the purposes of interpreting the expression “public servant” (see Section 23 of the Ordinance), has relied upon the definition provided in Law Terms & Phrases by Sardar Mohammad Khan Mokal. To explain as to what is meant by such legal connotation and the effect of being a public servant upon the right of the petitioners to contest the elections, learned counsel for the petitioners drew support from the judgments reported as Rana Muhammad Jamil Vs. The Punjab Road Transport Board, Lahore and others (PLD 1957 (W.P.) Lah 1) and Kalam Daraz Khan Vs. Crown (PLD 1951 Dhaka 104). He has also categorically and vehemently submitted that as the Member and the C.Ps.No.3186 & 3187/2015 -: 4 :- Chairman of the Local Committee, the petitioners were not receiving any salary, remuneration, honorarium or other monetary benefits. 4. On the other hand the submissions of the learned counsel for the respondents were based on the reasoning of the impugned judgment, and in this respect placed reliance on the judgment cited as Sahibzada Tariqullah Vs. Haji Amanullah Khan and others (PLD 1996 SC 717), in addition to the cases relied upon by the learned High Court in the impugned judgment. 5. Heard. In the context of the facts of the cases, which are not disputed, we find that the following propositions need resolution through this opinion (i) the interpretation of Section 27(2)(e) of the Punjab Local Government Act, 2013; (ii) the effect of Section 23 of the Zakat and Ushr Ordinance, 1980 when read with the provisions of Section 21 of the Pakistan Penal Code, 1860; and (iii) whether in the facts and circumstances of the present case and in the letter and spirit of the Ordinance, the petitioners are “in the service of a statutory body”. Thus for the above purpose, it seems expedient to reproduce the relevant Sections:- Punjab Local Government Act, 2013 “27. Qualifications and disqualifications for candidates and elected members.- (1) …………………………………… (2). A person shall be disqualified from being elected or chosen as, and from being, an elected member of a local government, if he- (a) …………………………………………………… (b) …………………………………………………… (c) …………………………………………………… (d) …………………………………………………… C.Ps.No.3186 & 3187/2015 -: 5 :- (e) is in the service of any statutory body or a body which is owned and controlled by the Government or a Provincial Government or the Federal Government or a local government or, in which any of such Government or local government has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from any such service, a period of not less than two years has elapsed since his resignation or retirement.” 23. Certain persons to be public servants.—Every person engaged in, or employed for, the administration of this Ordinance shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code (Act XLV of 1860). Explanation.—For the purposes of this section, the Chairman and members of the District Committee and Local Committee shall be the persons engaged in the administration of this Ordinance.” From the unambiguous language of Section 27(2)(e), there is no room for doubt that the disqualification is only in relation to a person who is “in the service” of any statutory body, etc. Before proceeding further it may be mentioned that it is settled law that the qualifications and disqualifications imposed by law for a candidate to contest the election and even to hold office should be construed and applied strictly (note: we are deliberately not examining this aspect in this case on the touchstone of Article 17 of the Constitution of Islamic Republic of Pakistan, 1973), and a person can only be debarred from contesting elections or holding an office if the case falls squarely within the strict scope of the qualifications and disqualifications stipulated by law. Be that as it may, in order to interpret and apply Section 27(2)(e) in C.Ps.No.3186 & 3187/2015 -: 6 :- the context of the facts of the present case, it may be mentioned that various Councils/Committees envisaged by the Ordinance are undisputedly statutory bodies as these have been created by the statute itself (the Ordinance). Therefore, the pivotal question which needs consideration and resolution is that whether a person who holds a post or position in any of these Councils/Committees is in the service of a statutory body. In our view to answer this question it is expedient to understand the object and spirit of the Ordinance, in that, why this law has been enforced, what are the different levels and nature of the Councils/Committees, what functions these Councils/Committees have to perform and, obviously what are the duties/functions of the persons who are a part of these forums, holding posts/positions thereto, because this analysis and comprehension has a direct nexus with, and shall facilitate in understanding the nature of the posts/positions. 6. In elucidation of the object of the Ordinance according to its preamble Zakat and Ushr have been considered to be a fundamental pillar (arkan) of Islam and it has been ordained that the State, in light of the Islamic injunctions, is to collect Zakat and Ushr and to disburse it in order to assist the needy, indigent and poor. Every Muslim who is sahib-e- nisab has been enjoined with the duty to pay Zakat and Ushr (as far as Ushr is concerned, subject to law) and the State has been called upon to arrange for its proper collection, utilization and disbursement in an organized manner. To achieve the above-mentioned object, Sections 3 and 5 of the Ordinance are the main charging provisions for Zakat and Ushr respectively. Section 7 has created a Zakat Fund and Section 8 provides for utilization thereof. Section 9 pertains to “disbursements from Zakat Funds” and it is primarily for this purpose that forums have been constituted at the Central, Provincial, District and Local level [see Section 9(1), (2), (3) and (4)]. C.Ps.No.3186 & 3187/2015 -: 7 :- Under the provisions of Section 12, the Government shall by notification in the official gazette establish a Central Zakat Council (Central Council) which is meant to provide policy guidelines for, and to exercise general superintendence and control over matters relating to Zakat and Ushr, particularly the Zakat Funds and maintenance of their accounts. This Central Council has a composition of various Members which are specifically mentioned in the Ordinance [see Section 12(2)]. The mode of their appointment and nomination etc. is also stipulated therein. It may be relevant to mention here that according to Section 12(2)(j), the Administrator-General Zakat of the Central Council shall also its Secretary General. 7. Besides the Central Council, there are Provincial Zakat Councils (Provincial Council), District Zakat and Ushr Committees (District Committee) and Tehsil, Taluka and Sub-divisional Zakat and Ushr Committees (Tehsil Committee) which are created under the relevant provisions of the law (see Sections 14, 16 and 17 respectively) and the mechanism of filling these forums and the mode of removal of the persons from the posts/positions thereof is duly prescribed by law (for the purposes of this opinion, it is not necessary to reproduce each and every provision). However Section 18 of the Ordinance pertains to the constitution of Local Committees (this section is relevant for the purposes of filling up the posts/positions of the Member and the election of the Chairman). The relevant parts of this section are reproduced below: “18. Local Zakat and Ushr Committee.- (1) ……………… (2) ………………………………………………… (3) The Local Committee shall consist of nine members, of whom two shall be Muslim women who are not less than forty-five years of age selected by the residents of the locality in the manner specified in sub-section (4). C.Ps.No.3186 & 3187/2015 -: 8 :- (4) The District Committee shall constitute a team of three or more persons including at least one gazetted officer, one aalim-e-deen and one member of the District Committee to organize a public gathering of the adult Muslim, teachers and ulema residents of a locality and call upon them to select, in the prescribed manner, seven adult Muslims residing in that locality who possess Secondary School Certificate and are known to be pious and who offer five times prayer daily, and have sound moral and financial integrity and not engaged in political activity: Provided that a person who is a member of a team constituted for the selection of members of a Local Committee shall not be eligible to be a member of such Local Committee, and except in the case of such Local Committees in the Islamabad Capital Territory as may be notified by the Administrator-General, a person who is a salaried employee of Government or of a local authority otherwise than as Pesh Imam of a local mosque or a teacher of a local school, or of a corporation set-up, owned or controlled by Government, shall not be eligible to be member of a Local Committee: Provided further that, where in a district the number of Local Committees is so large that the members of the District Committee, cannot be put on all the teams constituted for the selection of members of Local Committees in the district, the District Committee, may, at its discretion, nominate any other non-official person of the district to represent it on the said team: Provided further that the team constituted by the District Committee shall organize a separate gathering of the adult Muslim female residents of the locality and call upon them to select, in the prescribed manner, two Muslim women residing in that locality who are known to be pious and who enjoy their trust to be members of the Local Committee. (5) The members of a Local Committee shall elect one of their members, being a person who possesses C.Ps.No.3186 & 3187/2015 -: 9 :- Secondary School Certificate and who offers prayer five times during a day regularly and observes the fast throughout Ramadhan-ul-Mubarak according to the Injunctions of Islam, to be the Chairman of the Local Committee, and if two or more persons secure an equal number of votes, the result of the election shall be determined by drawing lots. From the clear expression of the section and also keeping in view the object and spirit of the law explained above (which as we mentioned earlier would have quite a nexus to understand whether the Members/Chairman of the Local Committee are in the service of a statutory body) it is unmistakably manifest that a Member of the Local Committee, who may ultimately be elected as a Chairman thereof [by following the procedure provided in Section 18(5)] is not a person who has been appointed or even nominated by any officer of the Zakat and Ushr department or any other functionary of the State, rather the filling up of the post/position of Member is a process of “selection” made by a Selection Team as envisaged by Section 18(4) which (provision) provides the necessary details, the particulars and also the procedure thereof. This process of selection, although cannot be considered to be an election, however it is an exercise of choosing the most suitable person of a locality to be a Member of the Local Committee in an open and transparent manner in a public gathering organized by the Selection Team. According to the Oxford English Dictionary, “selection” means “the action or fact of carefully choosing someone or something as being the best or most suitable ---- a number of carefully chosen things ---- the range of things from which a choice may be made”. Chambers English Dictionary defines the word “select” as “to pick out from a number by preference: to free-select ---- picked out: choice: exclusive” and “selection” as “the act of selecting: a thing or collection of things selected”. As per Webster’s Dictionary, “selection” is defined as “a selecting or being selected ----a person or thing chosen --- C.Ps.No.3186 & 3187/2015 -: 10 :- - a group or collection of these ---- a variety from which to choose”. It is, therefore, the residents of the locality who are given the privilege of selecting or choosing one amongst themselves [subject to meeting of qualifications prescribed by Section 18(4)] as their representative for the purposes of providing voluntary help to achieve the object of the Ordinance. It may be restated that the Members of the Local Committee are not appointed as such, as is the concept of appointment of a person in any government service, or the service of any State owned organization or even a statutory body over which the State or its extended limbs would have control and authority. Likewise a Chairman of the Local Committee is a person who has the requisite qualifications [see Section 18(5)] and is elected from one of the Members of the Local Committee. So a person does not become a Member and/or Chairman through a process of appointment by any official of the Zakat and Ushr department or by any other official act of the Government. It seems that in line with the object of the law highlighted above for the purposes of the disbursement of Zakat and Ushr to the truly deserving people of a locality, pious and notable persons of that area are selected as the Member and/or Chairman by the participation of the residents of the locality who, as mentioned earlier, act as their representatives by undertaking a voluntary assignment. It may also be pertinent to mention that for this voluntary work the Member or the Chairman, as has been unequivocally avowed by the counsel for the petitioners and is not disputed by the respondents’ side and even otherwise is not established from any law or the terms of assignment, do not receive any salary, honorarium or monetary benefits of any nature whatsoever. 8. Now let us analyze the process of removal of the Members or Chairman of the Local Committee. The Ordinance contains various C.Ps.No.3186 & 3187/2015 -: 11 :- methods of removal of the Members or Chairman of a Local Committee, which are reproduced herein below: “18. (9) The Chairman and members of the Local Committee shall hold office for a term of three years and shall be eligible for re-election or re-selection as the case may be: Provided that the District Committee may, in consultation with the Federal Government, remove a Chairman or a member of the Local Committee from his office and nominate another person as Chairman or, as the case may be, a member for the unexpired term of his predecessor: 21. Power of supersession and removal.—(1) If the Provincial Council, in the case of a District Committee, and the District Committee in the case of Local Committee, is of the opinion that a Committee constituted under this Ordinance— (a) is unable to discharge or persistently fails in discharging its duties, or (b) is unable to administer its affairs, or (c) acts in a manner contrary to public interest, or (d) otherwise exceeds or abuses its powers, or (e) has a majority of members who are not pious Muslims or who are engaged in political activity. The Provincial Council or, as the case may be, the District Committee may, by a notification, declare the concerned Committee to be superseded for such period not exceeding one year as may be specified in the notification: Provided that the period of supersession may, if the Provincial Council or the District Committee considers it necessary to do so, be extended, beyond a period of the year. C.Ps.No.3186 & 3187/2015 -: 12 :- (2) When a declaration is made under sub-section (1) in respect of a Committee,- (a) the persons holding office as Chairman and members of the Committee to which the resolution relates, shall cease to hold office; (b) all functions of the District Committee shall, during the period of supersession, be performed by an Administrator appointed by the Provincial Council and in the case of a Local Committee such functions shall be performed by the Administrator appointed by the District Committee; and (c) before the expiry of the period of supersession, elections shall be held and selection or nominations made in accordance with the provisions of this Ordinance to reconstitute the Committee. (3) If Provincial Council, in the case of District Committee, and the District Committee, in the case of Local Committee is of the opinion that the Chairman or a member of a Committee constituted under this Ordinance— (a) was at the time of his selection, election or nomination- (i) not a pious Muslim; (ii) not an adult; (iii) not a resident of the area within the jurisdiction of the Committee; (iv) an undischarged insolvent; (v) not of sound mind; or (vi) engaged in political activity; (b) has been during the period of three years preceding the date of his selection, election or nomination, C.Ps.No.3186 & 3187/2015 -: 13 :- (i) ordered to execute a bond under section 108, 109 or 110 of the Code of Criminal Procedure, 1898 (Act V of 1898); or (ii) convicted for an offence involving moral turpitude; or (iii) declared goonda under the law relating to the control of goondas; (c) has, after his selection, election or nomination, incurred any of the disqualifications referred to in sub-clause (i), (iii), (iv), (v) or (vi) of clause (a), or sub-clause (i), (ii) or (iii) of clause (b); (d) has, without reasonable excuse, absented himself from three consecutive meetings of the Committee; (e) has been guilty of abuse of power or of misconduct in the discharge of his duties as Chairman or members, or been responsible for any loss, misapplication, misappropriation or misuse of any money or property of the Committee; or (f) has become physically disabled or unable on any count from performing functions as Chairman or member, the Central Council, in the case of a District Committee, in the case of Local Committee, may by a resolution, remove such Chairman or member from office. 21-A. Vote of no-confidence. (1) Where in case of a Local Committee, the District Committee, after such enquiry as it may deem fit, is of the opinion that the members of that Committee no longer have confidence in the Chairman, the District Committee may in the prescribed manner remove the chairman from his office. (2) Where in the case of a member of a Local Committee, or of a Local Committee as a whole, the District Committee after such enquiry as it may deem fit is of the C.Ps.No.3186 & 3187/2015 -: 14 :- opinion that the adult Muslim residents of the locality no longer have confidence in the member, or in the Committee as a whole, the District Committee may, in the prescribed manner, remove the member from his office or dissolve the Committee as a whole. (3) The vacancy in the office of Chairman or member or members so caused shall notified by the District Committee and shall be filled in accordance with the provisions of this Ordinance.” From the aforementioned provisions of the Ordinance, it is clear that there are broadly three methods in which a Member or Chairman of a Local Committee may be removed. The first is under the proviso to Section 18(9) of the Ordinance, whereby the District Committee may, in consultation with the Federal Government, remove a Chairman or a Member of the Local Committee from his office. We are of the opinion that this provision certainly does not mean that power of removal or dismissal vests with the official(s) of the Zakat and Ushr department or the State or any government official for the following reasons: (i) such removal is not by any particular Government official or State functionary, rather the District Committee (see Section 17(3) for its constitution); (ii) the Federal Government need only be consulted, which consultation shall certainly not have a binding effect; and (iii) such empowerment has only been inserted as a proviso to the provision stipulating the maximum years of a term of office of a Member or Chairman of a Local Committee, and subsequent nomination in terms of the said proviso is only for the remaining unexpired term of the predecessor Member or Chairman, thus this method is not one utilized as of course. The second method is under the provisions of Section 21 of the Ordinance whereby a Provincial Council may be resolution remove a Member or Chairman of a Local Committee from office in certain C.Ps.No.3186 & 3187/2015 -: 15 :- circumstances [including misconduct, abuse of power, physical inability, etc.; see Section 21(3)]. Now although the Provincial Council contains some Government officials who are ex-officio Members and Chairman (see Section 14), the power conferred upon such Provincial Council by virtue of Section 21 can only be exercised in the circumstances for removal provided in the said section. It is not that a sweeping power or discretion of removal or dismissal has been vested with the Provincial Council. Furthermore, the fact that the Provincial Council consists of certain Government officials, should not detract us from the whole object and purpose of the Ordinance, and the fact that they too do not receive any salary, honorarium or other monetary benefits for the voluntary work that they carry out vis-à-vis Zakat and Ushr. The third method is removal by the District Committee by a vote of no-confidence in terms of the provisions of Section 21-A provided above. In light of the above, it does not seem to be the case that the power of removal lies predominantly with the State or Government officials. Thus all the three modes looked at from any angle do not fit in the legalistic and the conceptual mechanism which is provided and prescribed for the dismissal or removal of the person who is in the service of the State or a statutory body; which removal etc. is primarily and ordinarily founded upon misconduct or inefficiency as per the law and the rules prescribed for such removal etc. 9. In Muhammad Tufail (supra) the question came up before this Court as to whether the Administrator of a Market Committee was debarred from contesting the local bodies election as being in the service of a statutory body i.e. the Market Committee established under the Punjab Agricultural Produce Markets Ordinance, 1978, a five prong test was laid down in order to determine as to whether a person could be held to be in the service of a body or authority:- C.Ps.No.3186 & 3187/2015 -: 16 :- “Now according to the definition described above, service means being employed to serve another, it implies the submission to the will of another as to direction and control, to do work for another. The determining factor to hold a person to be in the service of a body or authority, implies sub-ordination to that body. There are five tests for such sub- ordination, namely, the power of the authority of the appointment to the office (ii) the power of removal or dismissal of the holder from the office (iii) the payment of remuneration (iv) the nature of functions of the of the holder of the office, he performs (v) the nature and strength of control and supervision of the authority. The decisive test is that of appointment and removal from service while the remuneration is neutral factor and not decisive. All the aforesaid tests need not be cumulated and not necessarily must co-exist and what has to be considered is the substance of the matter which must be determined by a consideration of all the factors present in a case ad whether stress will be laid on one factor or the other will depend on each particular case.” In the case of Raja Bahadur (supra), the question which came for examination was if the Grama Panchayat and its Sarpanch being under the control and supervision of the Government, such Sarpanch was in the service of the Government or not. The ratio of the judgment is to the following effect:- “But the mere power of control and supervision of a Grama Panchayat exercising administrative functions would not make the Grama Panchayat or any of its members a person in the service of the Government. Even if it can be said that Grama Panchayat in the exercise of its administrative functions exercises duties in the nature of governmental duties it cannot thereby be said that its Sarpanch is in the service of the Government. So far as the Sarpanch is concerned, he is merely the executive head of the Grama Panchayat which carries out its functions through him. He is C.Ps.No.3186 & 3187/2015 -: 17 :- not appointed by the Government. He is not paid by the Government. He does not exercise his functions as one in the service of the Government and he can only be removed on the ground of negligence, inefficiency or mis-behaviour. There is not a single provision of the Orissa Act from which it can be said that a Sarpanch is a person in the service of the Government.” In the judgment reported as Shahid Nabi Malik (supra), the question about the disqualification of a person to contest the election if he was in the service of Pakistan was being pondered upon and this Court came to the conclusion that: “’Service of Pakistan’ as defined in Article 260 of the Constitution, besides other categories of service means “any service, post or office in connection with the affairs of the Federation or of a Province”. Keeping this definition in juxtaposition with the functions and responsibilities assigned to P.I.B. by the Government, it cannot be argued that the services rendered by the P.I.B. were not in connection with the affairs of Federation. Mr. Dar who was the Chief Executive of P.I.B. and responsible for its proper functioning, therefore, in our view was undoubtedly in the service of Pakistan. … The evidence produced before the Tribunal only shows that during the period Mr. Dar held the office of Vice-Chairman of P.I.B., he was paid only out of his pocket-expenses which he incurred on travelling abroad. There is nothing on record to show that either the office of Vice-Chairman, P.I.B., carried any benefit by way of salary, remuneration or other fringe benefits or that Mr. Dar was paid any salary, allowances, fee, or other benefits in his capacity as the Vice- Chairman of P.I.B.. To establish that a person is ‘holding an office of profit’ two things have to be proved. Firstly, that C.Ps.No.3186 & 3187/2015 -: 18 :- there is an office and secondly, the office carries with it some kind of remuneration. In the present case, the evidence on record only established that Mr. Dar was holding an office in the service of Pakistan but there is no evidence to show that the office held by Mr. Dar was an office of profit. Mere reimbursement of out of pocket expenses to Mr. Dar could not make the office held by him as an office of profit in the service of Pakistan. As we have reached the conclusion that Mr. Dar was not holding any office of profit in the service of Pakistan, he was not disqualified from being elected or being the member of National Assembly.” Through this judgment though per its facts a person who was disqualified from contesting the elections for the National Assembly or the Provincial Assembly (or to be a member thereof) should not be holding an office of profit in the service of Pakistan, yet it has been held that being a Chairman of the Investment Board would not make him the holder of such an office in the service. In Inayatullah’s case (supra) while examining the question of whether a teacher of a school is disqualified from being appointed as the Member of a Local Committee, it has been held as under:- “After a fair amount of analysis and examination of the purposes of the law, we are inclined to adopt the second interpretation. It also affirms the intention as well as the language of the law. Salaried employees whether of Government, local authority or corporation which is under or controlled by the Government, local authority or corporation which is under or controlled by the Government, have been kept out of such representative organizations as is a Local Zakat Council. But an exception has been made regarding the Imams and teachers of local mosques and schools on account of their special qualification and position, vis-à-vis, the subject of Zakat – particularly its calculation, collection and distribution. Accordingly the appellant being the teacher of a local school would C.Ps.No.3186 & 3187/2015 -: 19 :- undoubtedly be qualified to become a member; but for another element in his employment. We have gone through the record in that connection and have also perused the certificate issued by the District Education Officer which shows that although he is the teacher of a local school but he is not the employee of a local authority. He is a salaried employee of the Government. As discussed above such a teacher of local school who is salaried employee of Government cannot be a member of the Local Zakat Committee.” In the case of Ch. Liaqat Ali (supra), while answering a question very similar to that in the instant matters was involved, in that whether Ch. Liaqat Ali, the petitioner in that case, was disqualified from contesting the local body elections, being an Administrator of the Local Zakat Committee, the learned Lahore High Court held that: “It is true that as an Administrator the petitioner No.1 can be said to be engaged in the administration of said Ordinance and per deeming provision of section 23 he is a public servant for the purpose of section 21 of the P.P.C. Moreover, by no stretch of imagination can it be said that the said petitioner is in the service of Federal, Provincial or a local Government or a statutory body within the meaning of section 14(g) of the P.L.G.E.O., 2000. I may here refer to section 18 of the said Ordinance of 1980 which provides for the constitution of a local Zakat Committee. The proviso to subsection (4) of the said section 18 lays down that a person who is a salaried employee of Government or a local authority or of a Corporation set up, owned or controlled by the Government, shall not be eligible to be a member of Local Committee. It will thus, be seen that bar contained in section 21(2)(b) on the appointment of an official as an Administrator is relatable to the said proviso to section 18(4) of the said Ordinance, 1980. It will thus, be seen that very structure of the Committee and consequently the person who is appointed as an Administrator in case its C.Ps.No.3186 & 3187/2015 -: 20 :- supersession completely ousts a person mentioned in section 14(g) of the P.L.G.E.O., 2000 from being appointed as a member or as an Administrator. From the collective consideration of the judgments referred to above and primarily following the criteria and principles mentioned therein we are of the view that the predominate factor for being in the service of a statutory body, that the authority of appointment to the post/position of Member and Chairman should vest with the State, Government or statutory body, is conspicuously missing; likewise the authority of removal does not primarily lie with the State or Government officials as such, rather lies with the Councils/Committees in tiers higher to that of the Local Committee, to be exercised only in terms of the relevant provisions aforementioned. Above all such Members and Chairman do not receive any salary, honorarium or any other financial benefits; the nature of the functions of the Members and Chairman are also akin to noble voluntary work, which is primarily to distribute Zakat and Ushr to deserving people of the locality; the element of the nature and strength of control and supervision of the authority is also not applicable because the Members and Chairman of the Local Committee do not seem to be under the control and supervision of any other body rather are assigned to follow the guidelines in discharge of their functions (highlighted above). As per the principles laid down by this Court in Muhammad Tufail (supra), considering all the factors present in the instant case(s), including the functions performed by the petitioners, we do not find them to be “in the service of” a statutory body etc. Furthermore, and quite importantly, while taking into consideration the view point set out in the cases of Inayatullah (supra) and Ch. Liaqat Ali (supra), the proviso to Section 18(4) of the Ordinance itself precludes “a person who is a salaried employee of C.Ps.No.3186 & 3187/2015 -: 21 :- Government or of a local authority---or of a corporation set-up, owned or controlled by Government” from being eligible to be a member of a Local Committee, hence obviously such member (and necessarily a Chairman) cannot logically fall within the mischief of Section 27(2)(e) of the Act which also precludes a person of similar description from contesting the local body elections. 10. Notwithstanding the above discourse, considering the concept and the purview of the term “in the service of” in the light of various dictionary meanings and those assigned by the Superior Court, it shall not be appropriate to read the word “service” in isolation, hermetically or insulated from “in the” and “of”. In Corpus Juris Secundum (79 CJS. P. 1139) it has been explained that the word “service” has a variety of meanings various connotations and significations, thus in our view the word “service” has to be construed along with its syntax. When considered in this perspective “in the service of” would mean “in the employment of” meaning thereby that there is a relationship of employer and employee. However because the appellants have not been taken into the employment of any statutory body (as envisaged by law) therefore the question of them being “in the service of” such statutory body does not arise. The above reason is fortified by the provisions of Section 23 of the Ordinance (reproduced earlier in this opinion). In the said provision, the words “every person engaged in, or employed for, the administration of this Ordinance” provides for two distinct categories of persons who perform functions vis-à-vis the Zakat and Ushr bodies created under the statute – one is that of persons “engaged in” and the second is that of persons “employed for”. In our candid view the appellants are part of the first category. This interpretation is also strengthened by the explanation to Section 23 in which it is clearly mentioned that the Members and the Chairman of the Local Committee are to be considered persons “engaged in”, and not “employed for” the C.Ps.No.3186 & 3187/2015 -: 22 :- administration of the Ordinance. Therefore, in our opinion the Members and the Chairman of the Local Committee are persons who are engaged in the administration of and not employed in any statutory body on account of the above. The view set out by the learned High Court that the appellants are in the service of the statutory body is absolutely unfounded and is misconceived. 11. With respect to the argument that as per Section 23 of the Ordinance the petitioners are deemed to be public servants within the meaning of Section 21 of the PPC, and are thus disqualified from contesting the elections, suffice it to say that this is a deeming clause and it is only by fiction of law that for the purposes of applicability of the PPC and for the object of enabling them to perform certain functions envisaged by the PPC that a legal status has been conferred upon them and that they are considered and deemed to be public servants otherwise they are not public servants at all. In this respect reliance has been correctly placed by the learned counsel for the respondents upon Kalam Daraz Khan’s case, although the case of Rana Muhammad Jamil (supra) does not seem to be relevant. Besides in Section 27 of the Act, there is no bar upon a person who is deemed to be a public servant from contesting the local bodies elections, and as has been mentioned above the qualifications and disqualifications of a person have to be construed and applied strictly and, therefore, on the basis of the deeming provisions of Section 23 of the Ordinance, which is meant for other objects and purposes, a person cannot be debarred from contesting the elections for local bodies. 12. As far as the view set out by the learned High Court of Balochistan in the cases of Zulikha Bibi and Muhammad Khan is concerned, that a Member/Chairman of a District Committee is not qualified to be elected as a member of a local body as it is a political C.Ps.No.3186 & 3187/2015 -: 23 :- activity which is prohibited under Section 14(4) of the Balochistan Zakat and Usher Act, 2012, suffice it to say that the said judgments held Member/Chairman of the District Committee to be “in the service of” a statutory body etc. and thus did not qualify for election to the local bodies by virtue of Section 24(1)(f) of the Balochistan Local Government Act, 2010 and a period of at least six months had not elapsed since such persons’ resignation/retirement from such service. In the instant matter(s), the interpretation of a very similarly worded provision of law is involved, i.e. Section 27(2)(e) of the Act which provides that a person shall be disqualified from being elected as a member of the local government if he is “in the service of” any statutory body etc. and a period of not less than two years has elapsed since his resignation/retirement. However as we have held above, that being a Member/Chairman of the Local Committee does not fall within the meaning of being “in the service of” a statutory body etc., thus the two year post-resignation/retirement bar does not apply. The prohibition against participation in political activities is only relatable to the period whilst a person holds the post/position of Member/Chairman of the District Committee, but once he resigns, such bar disappears. In this respect, the judgments of the learned High Court of Balochistan (supra) do not enunciate proper law and are therefore set aside to the extent of the law laid down therein. 13. In view of the foregoing, we find that being a Member and Chairman of the Local Committee, the petitioners were not “in the service of” a statutory body etc. within the purview of Section 27(2)(e) of the Act and therefore have a case for setting aside the order of the learned High Court which upheld the order of the Appellate Authority rejecting the nomination papers of the petitioners. The Appellate Authority and the learned Single Judge had erroneously declared the order passed by the Returning Officer C.Ps.No.3186 & 3187/2015 -: 24 :- accepting the nomination papers of the petitioners as illegal by incorrectly holding that the petitioners were hit by the disqualification enumerated in the above noted section. 14. The above are the detailed reasons for the short order of even date whereby the petitioners’ civil petitions were converted into appeals and allowed, which reads as:- “For the reasons to be recorded later on, these petitions are converted into appeals and allowed. We are of the view that the petitioners are not disqualified from contesting the elections of local bodies under the provisions of Section 27(2)(e) of the Punjab Local Government Act, 2013 as they do not fall within the purview of being in the service of a statutory body i.e. Local Zakat and Ushr Committee constituted under Section 18 of the Zakat and Ushr Ordinance, 1980 (the Ordinance). They, only being defined as ‘public servants’ under Section 23 of the Ordinance read with the provisions of Section 21, PPC, can also not be disqualified on the ground that they have been declared to be ‘public servants’ which (status) shall be considered and construed in the context of the letter and spirit of the respective law and its provisions.” JUDGE JUDGE JUDGE Islamabad, the 4th November, 2015 Approved For Reporting Waqas Naseer/*

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE FAISAL ARAB CIVIL PETITION NOs. 3195-L TO 3198-L, 3268-L, 3269-L, 3352-L TO 3358-L, 3570 TO 3576, 3603, 3604, 3631, 3669 TO 3673 OF 2016 & 69-L OF 2017 (On appeal against the judgment dated 14.10.2016 passed by the Lahore High Court, Lahore in FAO Nos. 213 to 216, 218, 239 to 258, 289 to 292 of 2015) State Life Insurance Corporation of Pakistan through its Chairman etc …Petitioner VERSUS Mst. Sardar Begum (In CP 3195-L/2016) Mst. Irshad Begum (In CP 3196-L/2016) Mst. Abida Parveen (In CP 3197-L/2016) Mst. Tasneem Akhtar (In CP 3198-L/2016) Mst. Nuzhat Parveen (In CP 3268-L/2016) Mst. Parveen Akhtar (In CP 3269-L/2016) Mst. Bashiran Bibi (In CP 3352-L/2016) Malik Muhammad Ayub (In CP 3353-L/2016) Niaz Ali (In CP 3354-L/2016) Mst. Nusrat Ara (In CP 3355-L/2016) Mst. Robina Shaheen (In CP 3356-L/2016) Riaz Ahmad Naveed (In CP 3357-L/2016) Haji Muhammad Sharif etc (In CP 3358-L/2016) Mst. Syed Mazhara Fatima (In CP 3570/2016) Mst. Shamshad Akhter (In CP 3571/2016) Ghulam Raza Sajid (In CP 3572/2016) Mst. Khalida Parveen (In CP 3573/2016) Mst. Rukhsana Kausar (In CP 3574/2016) Mst Kaneez Begum (In CP 3575/2016) Mst. Safia Bibi (In CP 3576/2016) Mst. Kaneez Bibi (decd) through LRs (In CP 3603/2016) Mst. Rukia Bibi (In CP 3604/2016) Mst. Inayat Begum (In CP 3631/2016) Mst. Anwar Begum (In CP 3669/2016) Mst. Rashida Bibi (In CP 3670/2016) Mst. Razia Begum (In CP 3671/2016) Mst. Zareena Bibi (In CP 3672/2016) Mst. Shafqat Jahan (In CP 3673/2016) Mst. Bashiran Bibi (In CP 69-L/2017) … Respondents CIVIL PETITION NOs. 3195-L TO 3198-L, 3268-L, 3269-L, 3352-L TO 3358-L, 3570 TO 3576, 3603, 3604, 3631, 3669 TO 3673 OF 2016 & 69-L OF 2017 2 For the Petitioner: Syed Waqar Hussain Naqvi, ASC (In CPs 3195-L to 3198-L/2016) Mr. Ibrar Ahmed, ASC Syed Rifaqat Hussain Shah, AOR (In CPs 3268-L, 3269-L, 3669 TO 3673/2016 & 69- L/2017) Mr. Jehanzeb Khan Bharwana, ASC (In CPs 3352-L TO 3358-L/2016) Rana Muhammad Ibrahim Satti, Sr. ASC Syed Rifaqat Hussain Shah, AOR Mr. Safdar Ali Qureshi, Law Officer, State Life Insurance Corporation (In CPs 3570 TO 3576, 3603, 3604 & 3631/2016) For the Respondents: Mr. Liaqat Ali Butt, ASC (In CP 3195-L/2016) N.R. (In all CPs except CP 3195-L/2016) Date of Hearing: 28.03.2017 JUDGMENT FAISAL ARAB, J.- The dispute in all these connected cases is with regard to determining the correct place of suing under the provisions of the repealed Insurance Act, 1938 as there is no dispute between the parties that suits can still be filed before the forum provided in the repealed Act for any relief in respect of contract of insurance executed when the repealed Act was in operation. This has also been held by a Full Bench of the Lahore High Court in the case of Mst. Robina Bibi Vs. State Life Insurance (2013 CLD 477). 2. For the settlement of their respective claims arising from the contracts of insurance executed when the repealed Insurance Act, 1938 was in operation, the respondents filed suits against the petitioners in the Courts of various District Judges of Punjab. In all such suits, the petitioners filed applications under Order VII Rule 10 CIVIL PETITION NOs. 3195-L TO 3198-L, 3268-L, 3269-L, 3352-L TO 3358-L, 3570 TO 3576, 3603, 3604, 3631, 3669 TO 3673 OF 2016 & 69-L OF 2017 3 of the Code of Civil Procedure seeking return of the plaints back to the respondents to be presented in the Civil Courts of appropriate jurisdiction. The basis for moving such applications was that as Section 46 of the Insurance Act, 1938 provides that the holder of insurance policy can sue the insurer in any Court of competent jurisdiction, such Court, by virtue of Section 15 of the Code of Civil Procedure, has to be the Court of the lowest grade competent to try the suit, hence, the Civil Court and not the District Court has jurisdiction. 3. Accepting the plea of the petitioner as to the place of suing, the District Judges of various districts, by applying the provisions of Section 15 of the Code of Civil Procedure, returned the plaints to the respondents to be presented before the Civil Courts of competent jurisdiction. Feeling aggrieved, the respondents challenged such decision before the Lahore High Court in appeals i.e. FAO Nos. 213 to 216, 218, 239 to 258, 289 to 292 of 2015, which were clubbed together for decision. The Lahore High Court vide single consolidated judgment dated 14.10.2016, set aside the orders of the District Judges after holding that as Section 2 (6) of the Insurance Act, 1938 defines ‘Court’ to be ‘the principle Civil Court of Original jurisdiction in a district’ and the Courts of the District Judges being undisputedly the principal Civil Courts of Original jurisdiction of their respective districts, the suits are to be tried not by the Civil Courts but by the District Courts having jurisdiction over the subject matter of the dispute. The petitioner has impugned the decision of the Lahore High Court in these petitions and have sought leave to appeal. 4. A team of four lawyers engaged by the petitioners in various sets of these 29 connected petitions argued in common that CIVIL PETITION NOs. 3195-L TO 3198-L, 3268-L, 3269-L, 3352-L TO 3358-L, 3570 TO 3576, 3603, 3604, 3631, 3669 TO 3673 OF 2016 & 69-L OF 2017 4 the definition of ‘Court’ contained in Section 2(6) of the Insurance Act, which states ‘Court’ means ‘the principal Civil Court of Original jurisdiction in a district,…’ is not relevant for determining the place of suing. They maintained that on the contrary, for determining the place of suing, the phrase ‘….. sue for any relief in respect of the policy in any Court of competent jurisdiction’ contained in Section 46 of the Insurance Act is relevant which when read with the provisions of Section 15 of the Code of Civil Procedure indicate that every suit shall be instituted in the Court of the lowest grade competent to try it and the Civil Court being such a Court, the proceedings for seeking any relief relating to insurance policy can only be competently initiated in the Civil Court having jurisdiction in the matter. As to the definition of ‘Court’ contained in Section 2(6) of the Insurance Act, it was argued that this definition is relevant only for determining the forum where money payable under insurance policy is to be deposited by the insurer, as envisaged under Section 47(1) of the said Act and cannot override the phrase ‘in any Court of competent jurisdiction’ contained in Section 46. It was lastly argued that in case this Court upholds the impugned decision of the Lahore High Court then it would deprive the petitioners even the right of appeal, which would have been otherwise available to it, in case the suits are tried by the Court of the first instance i.e. the Civil Court of competent jurisdiction. In support of their contentions, learned counsel for the petitioners relied upon the cases of Mst. Robina Bibi Vs. State Life Insurance (2013 CLD 477), Mst. Naseem Begum Vs. State Life Insurance Corporation of Pakistan (2014 SCMR 655), Patricia Ann Patel Vs. Gerald Cowling Patel (PLD 1972 Karachi 444), Akhtar Hussain Zaidi Vs. Abdul Majeed (PLD 1986 Lahore 663), S. Ghulam Dastagir & Sons Vs. Union Insurance CIVIL PETITION NOs. 3195-L TO 3198-L, 3268-L, 3269-L, 3352-L TO 3358-L, 3570 TO 3576, 3603, 3604, 3631, 3669 TO 3673 OF 2016 & 69-L OF 2017 5 Company of Pakistan Ltd (PLD 1995 Lahore 290), Lahore Race Club Vs. Khushbakht-ur-Rehman (2008 CLD 1117), Ghulam Nabi Vs. Muqarab Hussain (PLD 1974 Karachi 408), State Life Insurance Corporation of Pakistan Vs. Mst. Bashiran Bibi (2015 CLD 342) and All India Motor Transport Mutual Insurance Co Vs. Raphael George of Bombay Indian Inhabitant (AIR 1963 Bangal 7). 5. In order to appreciate the arguments of petitioners’ counsel, contents of Sections 2(6) and 46 of the Insurance Act, 1938, being relevant, are reproduced for the sake of convenience:- 2(6) "Court" means the principal Civil Court of Original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction. 46. The holder of a policy of insurance issued by an insurer in respect of insurance business transacted in Pakistan after the commencement of this Act shall have the right, notwithstanding anything to the contrary contained in the policy or in any agreement relating thereto, to receive payment in Pakistan of any sum secured thereby and to sue for any relief in respect of the policy in any Court of competent jurisdiction in Pakistan; and if the suit is brought in Pakistan any question of law arising in connection with any such policy shall be determined according to the law in force in Pakistan. (Underlining is ours). 6. Section 2(6) of the Insurance Act, 1938 gives composite meaning to the term ‘Court’. The first part says ‘the principal Civil Court of Original jurisdiction in a district’. Undoubtedly this part of the definition points towards the Courts of the District Judges which act as the principal Court of Original jurisdiction in every district. Hence, CIVIL PETITION NOs. 3195-L TO 3198-L, 3268-L, 3269-L, 3352-L TO 3358-L, 3570 TO 3576, 3603, 3604, 3631, 3669 TO 3673 OF 2016 & 69-L OF 2017 6 in absence of any exception provided in any other provision of the Insurance Act, 1938 with reference to a Court, no other meaning can be attributed to such part of the definition other than a District Court. Now the question arises as to why the need arose to use the phrase ‘in any Court of competent jurisdiction’ in Section 46 and mere mention of ‘Court’ was not enough. There appears to be a strong reason for that. The second part of the definition of ‘Court’ contained in Section 2(6) states “and includes the High Court in exercise of its Ordinary Original Civil jurisdiction”. As three High Courts of the sub-continent possessing ‘Ordinary Original Civil jurisdiction’ were also given jurisdiction to entertain such suits, which were also called the Presidency High Courts i.e. High Courts of Bombay, Madras and Calcutta, it was necessary to mention in Section 46 ‘in any Court of competent jurisdiction’. Furthermore, the principal seat of Sindh High Court at Karachi also possesses jurisdiction to act as the principal Civil Court of Original jurisdiction for the district of Karachi, which jurisdiction though not the same as the ‘Ordinary Original Civil jurisdiction’ conferred on the High Court of Bombay, Madaras and Calcutta, nevertheless it exercises jurisdiction as the District Court of Karachi (now covering all five districts of Karachi). Such jurisdiction of Sindh High Court exercised only at its principal seat stands covered under the first part of the definition of ‘Court’ provided in Section 2(6) of the Insurance Act, 1938. With regard to the nature of jurisdiction exercised by Sindh High Court discussed above, reference can be made to a decision of this Court in the case of Province of Sindh Vs. Hafiz Razzaq (1991 SCMR 920). Therefore, for any relief relating to a contract of insurance, if suit is to be filed in any of the five districts of Karachi then depending upon the pecuniary value of the suit, which is CIVIL PETITION NOs. 3195-L TO 3198-L, 3268-L, 3269-L, 3352-L TO 3358-L, 3570 TO 3576, 3603, 3604, 3631, 3669 TO 3673 OF 2016 & 69-L OF 2017 7 prescribed under the law from time to time, it is to be filed either in the District Court having jurisdiction on the subject matter or in the principal seat of the Sindh High Court at Karachi. Then by virtue of Section 4 of the Islamabad High Court Act, the Islamabad High Court possess Original jurisdiction for suits which is exercised in the districts of the Capital Territory of Islamabad, subject of course to the pecuniary limit that is prescribed by law from time to time for the suits. So for any relief relating to contract of insurance arising from the Insurance Act, 1938, depending upon the pecuniary value and territorial jurisdiction a suit can be filed in the Original jurisdiction of the Islamabad High Court as well. On account of all these multiple forums available for filing of the suit under Section 2(6) i.e. the phrase ‘in any Court of competent jurisdiction’ had to be used in Section 46 so that appropriate Court competent to try the suit could be identified for filing of the suit. Therefore, when Section 46 provides that for any relief arising from the contract of insurance, suit is to be filed in the Court of competent jurisdiction, then taking aid from the provisions of Section 20 of the Code of Civil Procedure and keeping in view the pecuniary value of the suit, it is to be filed in any of the two District Courts as provided in Section 20 of the Code of Civil Procedure or in the concerned High Court competent to try the suit but certainly not in the Civil Court. 7. As to the argument that the definition of ‘Court’ in Section 2(6) of the Insurance Act was meant only for deposit of money in Court by an insurer and for such reason the term ‘Court’ appearing in Section 47(1) is not followed by the term ‘competent jurisdiction’, the relevant provision of Section 47(1) of the Insurance Act, 1938 reads CIVIL PETITION NOs. 3195-L TO 3198-L, 3268-L, 3269-L, 3352-L TO 3358-L, 3570 TO 3576, 3603, 3604, 3631, 3669 TO 3673 OF 2016 & 69-L OF 2017 8 “….to pay the amount into the Court within the jurisdiction of which is situated the place at which such amount is payable under the terms of the policy or otherwise….”. It shows that the use of the term ‘Court’ in Section 47(1) was intended to leave it to the parties to agree in which Court the amount payable under the terms of the policy or otherwise was to be deposited by the insurer. As it was to be left to the parties to choose the Court in which money was to be deposited, the definition of ‘Court’ provided in Section 2(6) would certainly not be attracted. The application of the definition of ‘Court’ as provided in Section 2(6) to the term ‘Court’ appearing in Section 47(1) would have left no choice with the parties to select for themselves the Court where money was to be deposited by the insurer. This would have nullified the context in which the term ‘Court’ in Section 47(1) of the Insurance Act was used. So this argument of the petitioners’ counsel is also misconceived. 8. As to the argument that for the purpose of determining the place of suing, provisions of Section 15 of the Code of Civil Procedure are to be taken into consideration which provides that the suits are to be filed in the Court of the lowest grade competent to try the suit, suffice it is to state that Section 15 cannot be read in disregard of the provisions of Section 4(1) of the Code of Civil Procedure. In the case of Muhammad Siddiq Vs. Zawar Hussain (PLJ 1976 SC 493), after quoting Section 4(1) of Code of Civil Procedure, it was held by this Court as under:- “It is no doubt true that whenever any special jurisdiction is created or a power is conferred upon a Civil Court then in the absence of any provision to the contrary, the provisions of the Code will apply to such proceedings. But it is equally well settled that in the case of any conflict between the provisions of the CIVIL PETITION NOs. 3195-L TO 3198-L, 3268-L, 3269-L, 3352-L TO 3358-L, 3570 TO 3576, 3603, 3604, 3631, 3669 TO 3673 OF 2016 & 69-L OF 2017 9 Code and any local law the latter will over-ride any provisions to the contrary contained in the Code.” Hence where a Special law determines a place of suing, which in the present case in terms of Section 2(6) could be either the principal Civil Court of Original jurisdiction in a district or the special Civil jurisdiction of the Sindh High Court and Islamabad High Court, the same would prevail over the provisions of Section 15 of Code of Civil Procedure. It is now trite law that the provisions of special law always override the provisions of the general law to the extent of any conflict or inconsistency between the two. When it comes to filing of a suit under the provisions of Insurance Act, 1938, Section 15 of the Code of Civil Procedure would stand eclipsed as it comes under the shadow of Section 4(1) of the Code of Civil Procedure. Section 4 (1) of the Code inter alia provides ‘……nothing in the code shall be deemed to limit or otherwise affect any special or local law … or any special jurisdiction …conferred by or under any other law for the time being in force.’ Thus the Court competent to try the suit would only be the one that falls within the definition of Section 2(6) of the Insurance Act, 1938. 9. With regard to the argument of petitioner’s counsel that in case it is held that the suits are to be filed before the principal Civil Court of Original jurisdiction of a district, it would deprive the petitioner the right of appeal which would have been otherwise available had the suits been filed in the Civil Court, in our view such an apprehension is misconceived. We may point out that the right of appeal is creation of statue and where the legislature does not provide for it, the same cannot be claimed as an inherent right. Having said so, Section 96 Code of Civil Procedure provides that for every decree CIVIL PETITION NOs. 3195-L TO 3198-L, 3268-L, 3269-L, 3352-L TO 3358-L, 3570 TO 3576, 3603, 3604, 3631, 3669 TO 3673 OF 2016 & 69-L OF 2017 10 passed by any Court exercising Original jurisdiction, the appeal shall lie to the Court authorized to hear appeals arising from such decree. As the appellate forum from the decrees passed by the District Courts exercising Original Civil jurisdiction or from the decree passed by the High Court in its special Civil jurisdiction would be the High Court, therefore, a forum of appeal is nevertheless available to the parties. 10. We may also clarify here that where a claim is not relatable to a contract of insurance and for some other reason a person sues the insurance company, then obviously the forum provided under the Insurance Act, 1938 would have no application to such suits. To such suits, the provisions of Section 15 of Code of Civil Procedure, where attracted can be applied. Likewise, the forum of appeal in cases where the matter is not relatable to the contract of insurance would also be the one that is available under the provisions of Code of Civil Procedure. The jurisdiction of civil court is ousted only in cases where the provisions of special law, such as the Insurance Act, 1938, are attracted which provide a separate forum for seeking legal remedy. 11. We, therefore, conclude that all claims, whether directly arising from or relatable to a contract of insurance are covered under the provisions of Section 46 of the Insurance Act, 1938. All such suits are to be filed in a District Court of competent jurisdiction or depending upon the territorial jurisdiction and pecuniary value of the suit, in the principal seat of Sindh High Court or the Islamabad High Court as the case may be instead of the District Court. However, no such suit can be entertained in the Civil Court. CIVIL PETITION NOs. 3195-L TO 3198-L, 3268-L, 3269-L, 3352-L TO 3358-L, 3570 TO 3576, 3603, 3604, 3631, 3669 TO 3673 OF 2016 & 69-L OF 2017 11 12. In view of what has been discussed above, we find no legal error in the impugned judgment. Hence, no case for grant of leave is made out. These petitions are therefore dismissed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 28th of March, 2017 Approved For Reporting Khurram

{'id': 'C.P.L.A.3195-L_2016.pdf', 'url': ''}

{'id': 'C.P.L.A.3195-L_2016.pdf', 'url': ''}

                                                                                                                                1 C.P. No. 319/2016                                              (Commutation)                                                                                                                                                                                                                                                  2 C.P. No. 319/2016                                                                                                                                                                                                 (CA No. 1305-1327/2003)                                      (Commutation)                                                                                                                                    3 C.P. No. 319/2016                                                                                    "The Additional Accountant General, AGPR Sub Office, Peshwar, has filed concist statment to which the office shall assign number. After hearing the learned DAG and the Additional Accountant General, for reasons to be recorded later, this Petition is dimissed and leave refused."                      4 C.P. No. 319/2016

{'id': 'C.P.L.A.319_2016.pdf', 'url': ''}

{'id': 'C.P.L.A.319_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Muhammad Amin Ahmed Civil Petition No.3213-L of 2019 (Against order dated 2.10.2019 [assed by the Lahore High Court Multan Bench Multan in W.P. No.10300/2019) Muhammad Islam …Petitioner(s) Versus The State through Advocate General Punjab, Lahore, etc. …Respondent(s) For the Petitioner(s): Mr. Asaf Faish-ud-Din Verdeg, ASC along with M. Islam For the Respondent(s): N.R. Date of hearing: 14.04.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Apprehending arrest, Muhammad Islam, petitioner, seeks admission to bail; he is amongst array of the accused in a NAB reference; a dismissed constable of Special Branch, he is blamed to have lured, alongside co-accused, members of the public to invest in his Multan based travel agency, styled as “Bin Islam Travels & Tours” ; lucrative profits, offered by the accused, attracted no less than 61 investors in the business, subsequently turned out as farce; he attempted to pacify the disappointed clientele by issuing bank cheques, bounced upon presentation. In the backdrop of petitioner’s failure before a learned Division Bench of the Lahore High Court at Multan, his learned counsel contends that he was being hounded on trump up charges, manipulated by his adversary Zaheer Babar, a Police Inspector, currently serving as Station House Officer; that without prejudice to Civil Petition No.3213-L of 2019 2 petitioner’s position, the accusation does not fall within the remit of NAB’s jurisdiction as the group of alleged affectees does not constitute “public at large”, leaving the issue to be more aptly dealt with in regular criminal/civil jurisdiction; projecting the agency as a non-governmental organization, the learned counsel concluded that the petitioner merely drew commission paid by various airlines and as such cannot be held responsible for betrayal of offered windfall to the investors. 2. Heard. Record perused. 3. Principles, applicable to grant of anticipatory bail in a cognizable/non-bailable offence are by now well entrenched; these do not admit denials or parallel stories to ward off evidence/material prima facie constituting the offence nor the witnesses can be stripped off their credentials at the investigative stage so as to divert the usual course of law; a claimant must point out circumstances, reasonably suggesting abuse of process of law with strappings of mala fide, lurking behind the intended arrest; statements of 61 persons with diverse and different backgrounds, clamouring foul play cannot be summarily brushed aside to accommodate petitioner’s plea; same goes for a detailed and comprehensive investigative process, carried out pursuant to call up notice, followed by an inquiry, findings whereof, are prima facie pointed upon petitioner’s culpability for an offence wherein grant of bail is narrowly jacketed. Petition fails. Leave refused. Judge Judge Islamabad, the 14th April, 2020 Not approved for reporting Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN Civil Petition No.3228 of 2015 a/w CP 3229 of 2015 (On appeal from the judgment dated 15.10.2015 passed by the Lahore High Court, Lahore in W.P.No.30806-30807/15) Shakeel Sardar Awan and another …Petitioners in both Versus Election Appellate Authority, Tehsil Gujranwala (city) & others ..Respondents For the petitioner: Mr. Jalees Ahmed Meer, ASC Mr. Mehr Khan Malik, AOR For Respondents No.3-4: Mr. Muhammad Munir Peracha, ASC (in CP 3229/15) On Court Notice: Mr. Razzaq A. Mirza, Addl. A.G. Pb. Date of hearing: 09.11.2015 ORDER Dost Muhammad Khan, J.— This common judgment shall also decide CPLA No.3229/15 titled Shakeel Sardar Awan v. Election Appellate Authority, Tehsil Gujranwala (City) & others. Both the petitions have been filed against two different judgments, rendered by the Lahore High Court, Lahore in W.Ps. No.30806 and 30807 of 2015, albeit both the impugned judgments operate on similar and same legal and factual premises. CPs.3228-29/15 2 2. Arguments of the learned ASCs for the parties and Mr. Razzaq A. Mirza, learned Additional Advocate General, Punjab heard in considerable length and case file perused. 3. Learned counsel for the petitioners in both the petitions has laid considerable stress on two-fold legal points, seeking disqualification of the respondents for contesting elections on the seats of Chairman and Vice Chairman of Union Council, consisting of Wards No.9 to 16. (i) The first limb of his arguments was that, respondents No.3 and 4 had submitted five number of nomination papers, joining with them altogether different contestants, therefore, the same are hit by the mischief clause (6) of rule 12 of the Punjab Local Governments (Conduct of Elections) Rules 2013 {hereinafter referred to as, the Rules, 2013} and because one of the contestants had concealed that he was holding the status of being a Chairman, District Bait-ul-Mal, Gujranwala, which was essentially required to have been disclosed in the nomination papers, therefore, he stands disqualified. (ii) The second part of his plea was that, being a Chairman of District Bait-ul-Mal, the contesting respondent stands disqualified in view of the law declared by this Court in the case of Mirza Muhammad Tufail v. District Returning Officer (PLD 2007 SC 16). 4. On the last plea, the learned ASC vehemently urged that in view of interpretation, made by this Court, of section 152(1)(g) of the Punjab Local Government Ordinance (XIII of 2001) {hereinafter referred to as, the Ordinance, 2001} the said respondent is holding a post, which attracts disqualification. CPs.3228-29/15 3 5. Mr. Muhammad Munir Peracha, learned ASC for the respondents and the learned Additional Advocate General, Punjab supported the impugned judgment in both the cases, rendered by the Lahore High Court, Lahore dated 15.10.2015, however, Mr. Muhammad Munir Peracha, learned ASC added that there is a wider difference between the powers of the Returning Officer and the Administrative Appellate Authority vis-à-vis the Tribunals, to be constituted and established by the Election Commission of Pakistan for the purpose of trial of the petitions, seeking disqualification of Returned Candidates on the grounds enumerated by the relevant provisions of law. He explained that the scheme of the law and the rules plainly understandable, are that the Returning Officer or for that matter Administrative Appellate Authority are vested with powers to see the eligibility and disqualification of the petitioners, which are specifically provided in sub-rule (3) of rule 14 of the Rules, 2013. To understand the true intent of rule making authority, the above sub-rule is reproduced below:- “14. Scrutiny.— (1) … (2) … (3) The Returning Officer may, either on his own accord or on any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that: (a) the candidate is not qualified to be elected as a member, Chairman and Vice Chairman, or Mayor and Deputy Mayor; (b) the proposer or the seconder is not qualified to subscribe to the nomination paper; CPs.3228-29/15 4 (c) any provision of rule 12 or rule 13 has not been complied with; or (d) the signature or thumb impression of the proposer or the seconder is not genuine.” The plea of the learned ASC is that, at pre-elections stage, the Returning Officer or the Appellate Authority have no power to travel beyond the mandate, given to them by the law and they can only look at the qualifications of the candidate and not his disqualifications because the latter pertain to post-elections stage where the Tribunal to be constituted holds a full-dress trial/inquiry. 6. So far as the second limb of the objection is concerned, it has not impressed us in any manner. Our reasons are as follows:- (i) Firstly, that the ibid judgment was rendered by this Court while interpreting erstwhile provision of section 152(1)(g) of the Ordinance, 2001, which has been repealed along with other provisions of the Ordinance by way of repealing provision of section 154 of the Punjab Local government Act, 2013 and the same has been replaced by the provision of sub-section (2) of section 27 of the ibid Act. Clause (e) of the same provides as follows:- “27. Qualifications and disqualifications for candidates and elected members.— (1) …. (2) A person shall be disqualified from being elected or chosen as, and from being, an elected member of a local government, if he- (a) …. (b) …. (c) …. (d) …. CPs.3228-29/15 5 (e) is in the service of any statutory body or a body which is owned or controlled by the Government or a Provincial Government or the Federal Government or a local government or, in which any of such Government or local government has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from any such service, a period of not less than two years has elapsed since his resignation or retirement.” (ii) This provision contains exception clause, which excludes from disqualifications those candidates, holding the elected public office and part-time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from any such service, a period of not less than two years has elapsed since his resignation or retirement. (iii) The exception clause undoubtedly covers the case of the contesting respondents, however, under the relevant provisions of law i.e. Pakistan Bait-ul-Mal Act, 1992 the disqualification is not attracted to him because at the Provincial level, overall controlling authority is the Provincial Bait-ul-Mal Board, which has to be constituted by the Federal Board through notification in the official gazette however, after the 18th Amendment in the Constitution, these powers are now exercisable by the Provincial Governments. (iv) The Board is headed by the Chairman who shall be the Secretary, Government of Pakistan (now Province) Ministry of Human Development, Social Welfare and Special Education, ex-officio. (v) The District Bait-ul-Mal has a very limited role and is under the control and management of the Provincial Bait- ul-Mal Board. All policies and conduct of business, CPs.3228-29/15 6 regulating its proceedings shall be done according to the procedure, prescribed by the Provincial Board. (vi) The contesting respondent is a non-official Chairman of the District Board, who shall have to hold office during the pleasure of the Provincial Board. (vii) The area of activities of the Provincial Board has been well-defined in section 4 thereof, while District Board Bait-ul-Mal has to follow the policies of the Provincial Board and has no independent power to be exercised, taking any decision whatsoever, in disregard of the policies formulated by the Provincial Board. (viii) Now coming to the interpretation of the provision of clause (e) of sub-section (2) of section 27 of the Act, 2013, there can be no gainsaying that the post of the Chairman or any member of the District Board is entirely formal in nature and it has no independent role to play; to confer any benefit on any person by dis-regarding the policy guidelines given by the Provincial Board. (ix) We have gone through the entire scheme of the Bait-ul-Mal Act, 1992 and the provisions of section 7(2) thereof, which clearly provides that non-official member shall not draw any salary, but shall be entitled to such facilities and privileges as may be prescribed from time to time. It is not established at the bar that the Chairman is paid remuneration or any type of emoluments in cash thus, it appears that except some privileges or facilities which are provided at office, nothing is paid in cash either as remuneration or “honorarium”. Hence, in the absence of clear proof, which has not been provided to us, it could not be held on high presumption that the contesting respondent as Chairman, District Bait-ul-Mal is getting pecuniary benefits from the Government or/and from the fund/revenue generated by the Bait-ul-Mal at the Federal level, the Provincial level or to say, the District level. CPs.3228-29/15 7 (x) The persons, who are to get financial assistance from the fund of Bait-ul-Mal, are clearly defined in the provision of section 4 thereof therefore, not a slight discussion is left for the District Bait-ul-Mal, much less the Provincial Board of Bait-ul-Mal to extend undue benefit to any undeserved person because the guidelines given, are clearer than crystal. Moreover, it appears that the District Bait-ul-Mal Board is constituted by the Provincial Board of Bait-ul-Mal, keeping in view criteria laid down in the provision of section 3 of the Bait-ul-Mal Act. The combined study of the above provision of the Bait-ul-Mal Act leads us to a definite conclusion that it is a voluntary service, rendered by the Social Workers, possessing high integrity and spotless career because the word, “Ameen” has been clearly mentioned therein. Therefore, a person having the above qualifications, inter alia, can become eligible as Member or the Chairman of the Board. To make it more clear, in our view it is indeed a social organization. (xi) True, that the Chairman, the Members and the servants of the Board while acting in pursuance of any provision of the Act, shall be deemed to be public servants within the meaning of section 21 of the Pakistan Penal Code however, the same is provided for a restricted and well-defined purpose so that the Chairman, Members and servants of the Board do not indulge in corrupt practices and if they commit a breach of trust then, they will be liable to be proceeded against for that offence(s) under PPC. When the plain language of the Statute is quite clear then it is not for the Court to widen the scope of the same. (xii) Even in the judgment given in Mirza Muhammad Tufail’s case (supra) this Court has held that the elected representatives should not be open to any influence or temptation, which may be stumbling block in their way to serve the people of their constituency, truly and freely. Possibility of existence of such influence or the interest or temptation is sufficient disqualification unless law provides otherwise i.e. the ruling concept. CPs.3228-29/15 8 (xiii) True that the expression “in the service” shall not be taken in a restricted, narrow and technical sense however, its scope could not be widened out of proportion. It was also held in the cited case as follows:- “Thus, the Courts found it impracticable to attempt a definition by which to test every case that may arise.” Moreover, there exists no master and servant relationship nor the contesting respondent has the powers to hire and fire any employee of the District Bait-ul-Mal and for that matter the case is to be referred to the Provincial Board, which is the ultimate authority to make independent decision. (xiv) In the Case of Aftab Shahban Mirani v. President of Pakistan(1998 SCMR 1863) it was held that disqualification of a candidate at pre-election stage on the basis of summary inquiry is not proper unless the disqualification is of the nature, which is patent, and which needs no detailed inquiry. (xv) Again in the short order of this Court in CP 3186/15 (Ghazanfar Ali v. Appellate Authority/Additional District Judge, Sahiwal and others) dated 4.11.2015, appeals of the contesting candidates were allowed and it was held that they were not disqualified from contesting the elections of the Local Bodies under the provision of section 27(2)(e) of the Act, 2013 as they do not fall within the purview of being in the service of the statutory body i.e. Local Zakat and Ushr Committee constituted u/s 18 of the Zakat and Ushr Ordinance, 1980. (xvi) If in future the petitioner come across some substantial materials at post elections stage, attracting disqualification clause to the contesting respondents, then he would have an opportunity to file election petition before the Election Tribunal, to be constituted and established by the Election Commission of Pakistan, which would hold extensive trial/proceedings, recording evidence, CPs.3228-29/15 9 collecting and bringing on record documentary evidence in that regard. Moreover, both the parties would have an ample opportunity to plead their cases before the Tribunal elaborately and very clearly, therefore, in our considered view this plea/objection of the petitioner, which has been concurrently rejected by all the three foras, is not tenable in law. 7. so far as the filing of five nomination papers is concerned, that is squarely permitted by the provisions of Rule 12(6) of the Rule, 2013 where it is provided that a person may be nominated for a seat in the same constituency by not more than five nomination papers. While under sub-rule (7) if the proposer or a seconder to more than one nomination papers is the same voter in the Ward, such nomination papers except the one received first by the Returning Officer shall be void, which is not the case in hand. Thus, when the law has permitted a certain course except with the above restriction then, first plea taken is entirely based on misconception of law. The Court is not supposed to add anything to law which is not provided therein nor to omit any word or expression from a Statute, which is expressly provided therein because under the cannon of interpretation of Statute the Court is to interpret the law and not to legislate the same or to provide the omission, which was deliberate and was not provided by the law makers for obvious reasons. 8. Before parting with this judgment, we may point out here that the respondents have equal, rather more supreme fundamental rights to be chosen as representatives therefore, CPs.3228-29/15 10 even in a case of borderline, where two interpretations of Statute are possible, the one favouring the candidate shall be preferred not in favour of objector, to preserve, protect and guarantee the fundamental rights, provided by the Constitution and the law and not to deprive a citizen from such rights on trifling grounds, based on mere technicalities or placing another interpretation on any provision of law, which is not expressly gleaned out therefrom by disqualifying a candidate, depriving him of fundamental right. Accordingly, both these petitions are found devoid of all legal merits. These are the reasons for our short order of even date, which is as follows:- “For the reasons to follow, these petitions are dismissed and leave to appeal declined.” Judge Judge Islamabad, the 9th November, 2015 Nisar /-‘ Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL, CJ MR. JUSTICE ATHAR MINALLAH C.P.3282-L, 3401-L TO 3403-L, 3449-L, 3450-L, 3504-L TO 3516-L, 3535-L TO 3537-L, 3521-L, 3534-L, 3538-L, 3573-L OF 2022 AND 9-L OF 2023 1. C.P.3282-L/2022 (Against the order dated 29.09.2022 passed by Lahore High Court, Lahore in WP No. 58672/2022) The Commissioner Inland Revenue, Lahore v. Service Industries Limited, Lahore, etc 2. C.P.3401-L/2022 (Against the order dated 29.09.2022 passed by Lahore High Court, Lahore in WP No. 59133/2022) Commissioner Inland Revenue, Lahore v. Highnoon Laboratories Limited, Lahore, etc 3 C.P.3402-L/2022 (Against the order dated 29.09.2022 passed by Lahore High Court, Lahore in WP No. 59245/2022) Commissioner Inland Revenue, Lahore v. Ibrahim Holding (Private) Limited, Lahore, etc 4 C.P.3403-L/2022 (Against the order dated 29.09.2022 passed by Lahore High Court, Lahore in WP No. 59251/2022) Commissioner Inland Revenue, Lahore v. Ibrahim Fibers Limited, Lahore, etc 5 C.P.3449-L/2022 (Against the order dated 28.09.2022 passed by Lahore High Court, Lahore in WP No. 56758/2022) Commissioner Inland Revenue, Lahore v. Lotte Akhtar Beverages (Private) Limited, Lahore, etc 6 C.P.3450-L/2022 (Against the order dated 28.09.2022 passed by Lahore High Court, Lahore in WP No. 58689/2022) Chief Commissioner Inland Revenue, Lahore v. Total Parco Pakistan Limited, Lahore, etc 7 C.P.3504-L/2022 (Against the order dated 31.10.2022 passed by Lahore High Court, Lahore in WP No. 67867/2022) Commissioner Inland Revenue, Lahore v. Bata Pakistan Limited, Lahore, etc 8 C.P.3505-L/2022 (Against the order dated 28.11.2022 passed by Lahore High Court, Lahore in WP No. 75186/2022) Commissioner Inland Revenue, Lahore v. CHT Pakistan (Pvt) Limited, etc 9 C.P.3506-L/2022 (Against the order dated 05.10.2022 passed by Lahore High Court, Lahore in WP No. 59911/2022) Commissioner Inland Revenue, Lahore v. Tetra Pak Pakistan Limited, etc 10 C.P.3507-L/2022 (Against the order dated 18.10.2022 passed by Lahore High Court, Lahore in WP No. 64130/2022) Commissioner Inland Revenue, Lahore v. AKZO Nobel Pakistan Limited, Lahore, etc C.P.3282-L/22 etc 2 11 C.P.3508-L/2022 (Against the order dated 31.10.2022 passed by Lahore High Court, Lahore in WP No. 67781/2022) Commissioner Inland Revenue, Lahore v. M/s Tandlianwala Sugar Mills Limited, etc 12 C.P.3509-L/2022 (Against the order dated 27.10.2022 passed by Lahore High Court, Lahore in WP No. 66883/2022) Commissioner Inland Revenue, (Enforcement), Lahore v. M/s. Platform Turizm Tasimacilik Gida Insaat Temizlik Hizmetleri Sanayi Ve Ricaret A.S, etc 13 C.P.3510-L/2022 (Against the order dated 04.10.2022 passed by Lahore High Court, Lahore in WP No. 60340/2022) Commissioner Inland Revenue, Lahore v. Coca Cola Beverages Pakistan Limited, etc 14 C.P.3511-L/2022 (Against the order dated 02.11.2022 passed by Lahore High Court, Lahore in WP No. 68017/2022) Commissioner Inland Revenue, Lahore v. Daewoo Pakistan Express Bus Service Limited, etc 15 C.P.3512-L/2022 (Against the order dated 18.10.2022 passed by Lahore High Court, Lahore in WP No. 64237/2022) Commissioner Inland Revenue, Lahore v. M/s Chiesi Pharmaceutical Pvt Ltd, Lahore, etc 16 C.P.3513-L/2022 (Against the order dated 04.10.2022 passed by Lahore High Court, Lahore in WP No. 60348/2022) Commissioner Inland Revenue, Lahore v. M/s Nimir Chemicals Pakistan Ltd, etc 17 C.P.3514-L/2022 (Against the order dated 01.11.2022 passed by Lahore High Court, Lahore in WP No. 67979/2022) Commissioner Inland Revenue, Lahore v. Cheikhoo Sugar Mills Limited, etc 18 C.P.3515-L/2022 (Against the order dated 02.11.2022 passed by Lahore High Court, Lahore in WP No. 68023/2022) Commissioner Inland Revenue, Lahore v. Daewoo Pakistan Express Bus Service Limited, etc 19 C.P.3516-L/2022 (Against the order dated 28.10.2022 passed by Lahore High Court, Lahore in WP No. 67221/2022) Commissioner Inland Revenue, Lahore v. Packages Real Estate (Private) Limited, etc 20 C.P.3535-L/2022 (Against the order dated 27.10.2022 passed by Lahore High Court, Lahore in WP No. 66947/2022) Commissioner Inland Revenue, Lahore v. Ashraf Sugar Mills (Pvt) Limited, etc 21 C.P.3536-L/2022 (Against the order dated 28.10.2022 passed by Lahore High Court, Lahore in WP No. 66898/2022) Commissioner Inland Revenue, Lahore v. M/s Corteva Agriscience Pakistan (Pvt) Limited, etc 22 C.P.3537-L/2022 (Against the order dated 04.10.2022 passed by Lahore High Court, Lahore in WP No. 60425/2022) Chief Commissioner Inland Revenue, Lahore v. Almoiz Industries Limited, etc 23 C.P.3521-L/2022 (Against the order dated Commissioner Inland Revenue, Lahore v. M/s Shahtaj Sugar C.P.3282-L/22 etc 3 31.10.2022 passed by Lahore High Court, Lahore in WP No. 67937/2022) Mills Ltd, etc 24 C.P.3534-L/2022 (Against the order dated 27.10.2022 passed by Lahore High Court, Lahore in WP No. 67096/2022) Commissioner Inland Revenue, Lahore v. Mobiserve Pakistan (Pvt) Limited, Islamabad, etc 25 C.P.3538-L/2022 (Against the order dated 31.10.2022 passed by Lahore High Court, Lahore in WP No. 68129/2022) Commissioner Inland Revenue, Lahore v. Fatima Sugar Mills Limited, Lahore-Cantt, etc 26 C.P.3573-L/2022 (Against the order dated 25.10.2022 passed by Lahore High Court, Lahore in WP No. 66055/2022) Commissioner Inland Revenue, Lahore v. M/s Etihad Sugar Mills Limited, Lahore, etc 27 C.P.9-L/2023 (Against the order dated 29.09.2022 passed by Lahore High Court, Lahore in WP No. 58683/2022) The Commissioner Inland Revenue, Lahore v. Service Global Footwear Limited, Lahore, etc For the Petitioner(s) : Mrs. Asma Hamid, ASC Mr. Aamir Yasir, DC Mr. Badshah Chief Commissioner video link from Lahore For the Respondent(s) : Mr. Salman Akram Raja, ASC in CP No.3282-L, 3449-L, 3516-L) Syed Rifaqat Hussain Shah, AOR Mr. Shazib Masud, ASC video link from Lahore in C.P.3401-L/2022 Mr. Mansoor Usman Awan, ASC video link from Lahore in CP No.3402-L, 3403-L, 3450-L, 3506-L) Mr. Shahbaz Butt, ASC video link from Lahore in CP No.3405-L, 3511-L, 3514- L, 3515-L) Mr. Muhammad Shoaib Rashid, ASC in CP No.3510-L Mr. Muhammad Ajmal Khan, ASC video link from Lahore in CP No.3534-L Date of Hearing : 06.02.2023 O R D E R UMAR ATA BANDIAL, CJ: These petitions are filed against interim orders passed in different writ petitions by a learned Single Judge of the Lahore High Court whereby recovery of tax levied under Section 4C of the Income Tax Ordinance, 2001 (“Ordinance”) from the respondents-companies has been C.P.3282-L/22 etc 4 restrained against the security of post-dated cheques. Our order dated 02.02.2023 summarises the petitioner’s challenge to the impugned interim orders in the following terms: “Learned counsel for the petitioner submits that recovery of tax under Section 4C of the Income Tax Ordinance, 2001 ("Ordinance") has been challenged by the respondents through writ petitions filed before the High Court. The High Court has passed interim orders restraining recovery of the tax against the security of the post-dated cheques. She submits that in the first place the respondents have not challenged the vires of Section 4C ibid. For bypassing statutory remedies and failing jurisdictional tests for maintainability, these petitions cannot proceed before the High Court. In case the petitioner's challenge is construed to be an attack on the vires of the law, the impugned stay order by the High Court is without jurisdiction for suspending a statute as laid down by this Court in Federation of Pakistan Vs. Aitzaz Ahsan and another (PLD 1989 SC 61). In any event, a crucial aspect for the grant of interim relief, namely, balance of convenience ought to have been examined by the learned High Court but that factor has been completely overlooked whilst granting the interim relief on terms that have choked crucial revenue for the Exchequer. 2. We note that the impugned orders dated 28.9.2022 and 29.9.2022 do not consider the points raised before us. Also that post-dated cheques are mere solace; providing neither tangible security nor adequate comfort. We would like to examine the points urged by the learned counsel for the petitioner.” 2. Today, we have heard the learned counsel for the parties. A consensus has emerged among the parties that the controversy regarding the matter should in the first place be C.P.3282-L/22 etc 5 decided finally by the High Court. With respect to the grant of interim relief, there is also consensus that the challenge made by the respondents is to the vires of law and that the operation of Subsection 3 & 4 of Section 4C of the Ordinance have virtually been suspended on account of the impugned interim orders that are presently assailed before us. It is also plain that whilst considering the grant of interim relief, the High Court has failed to advert its mind to the crucial factor of the balance of convenience. In view of the above, the respondents have consented to deposit under protest with the tax authorities 50% of the liability claimed against them under the impugned provisions of Ordinance. However, the amount of such deposit shall be reduced by the amount of any refund that has been determined by the tax authorities in favour of the respondents. Needful to be done within one week from the date of this order. 2. With the foregoing observations, these matters are disposed of. Chief Justice Judge Islamabad 06.02.2023 Rashid/* Not approved for reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE MUNIB AKHTER MR. JUSTICE QAZI MUHAMMAD AMIN AHMED CIVIL PETITION NO.3317 & 3318 OF 2018 (Against judgment dated 21.5.2018 passed by the Islamabad High Court, Islamabad in FERA No.11 and 13 of 2015) Commissioner Inland Revenue, (Legal), Islamabad …Petitioner(s) (In both cases) Versus M/s Wi-Tribe Pakistan Ltd., Islamabad …Respondent(s) (In both cases) For the Petitioner(s): Dr. Farhat Zafar, ASC Ch. Akhter Ali, AOR. For the Respondent(s): Mr. Ayyaz Shaukat, ASC Syed Rifaqat Hussain Shah, AOR. Date of hearing: 22.1.2020. ORDER MAQBOOL BAQAR, J. The question involved in the instant petitions is, as to whether despite clear exemption from payment of Federal Excise Duty (“FED”), on internet services, as granted by the Federal Excise Act, 2005 (the Act) in terms of section 3 thereof, through item No.2 of Table-II in the 3rd Schedule of the Act, transmission of voice contents through internet would attract levy of FED, as is chargeable on telecommunication services. 2. The respondent M/s Wi-Tribe Pakistan Limited, which holds a wireless local loop license, was issued a show cause CP 3317&13318/18 2 notice for non-payment of FED on account of services falling under the scope of “telecommunication services” rendered for the period from January 2011 to December 2012. Order in original was accordingly passed on 25.2.2014, and the appeal filed by the respondent there-against failed, however their appeal before the Appellate Tribunal Inland Revenue (the Tribunal) was allowed, the Tribunal held that since internet services are exempted from FED, the ‘voice content’ transmitted through internet also enjoys such exemption. The learned Islamabad High Court upheld the Tribunal’s decision through the impugned judgment. 3. Indeed telecommunication services attract levy of FED. Under Section 3 of the Act, the said services are listed at S.No.6 of Table-II, bearing heading 98.12, in the First Schedule of the Act. However one such service, being the internet service, has been exempted from whole of excise duties. Internet service has thus been specified at S.No.2 of the Table-II of the Third Schedule of the Act, which table enumerates the services which are exempted from duty, relevant portion of the said item is, for the ease of reference, reproduced hereunder:- “2. Telecommunication services (i) Internet services whether dialup or broadband including email services, Data Communication Network Services (DCNS) and Value added data services.” The above signifies two important aspects in the present context. Firstly that not all the communication services attract levy of FED, secondly, (a) internet service, in the context of the Act, falls within the category of communication services, and (b) the same CP 3317&13318/18 3 do not attract levy of FED. It may be crucial to note here that while granting exemption as above, no exception has been created and no categorization effected, as to the nature, usage, character or application of the internet facility. Thus it can safely be said that all telecommunication facilities availed through internet are exempted from FED irrespective of their nature. Admittedly the respondent, at least in the present context, are internet service provider (ISP), and charges for such service only. Though a customer may utilize internet facility for various different purposes, such as browsing, downloading and/or availing various applications like “WhatsApp”, “Skype”, “Facetime”, “Imo”, for audio, (voice content) and/or visual transmission, however, ISP has no concern with such applications/ facilities, nor does he provides or controls the same or charge any fee/amount therefor. The fee/amount that ISP charges from his customer is for the internet connectivity only. In fact no amount is charged even by the application provider for availing the said application, the facility being free of charge, and also since it has not even been claimed that any rate of any fee or charge has been determined, or prescribed therefor, and whereas telecommunication services were otherwise, liable at the relevant time to duty @ 17% of the charges, and on this corollary, in terms of sub-section (2) of Section 12 of the Act, the internet services, which fall within the category of telecommunication service also would have, but for the exemption, been liable to FED at the rate dependent upon the fee charge therefor, however since there is a zero charge in respect of internet service, as CP 3317&13318/18 4 neither any amount is paid nor is any prescribed, no duty can therefore be charged due to this handicap also. It may also be noted here that the fee charged by an ISP is either by way of a package (fix charges) or on the actual usage of the internet data which is measured in bytes there is however neither any mechanism, device or formula to decipher or segregate such consumption in terms the various utilities the same is put to separately, nor has the petitioner devised any mechanism, criteria or formulate, to achieve the same and has also not framed any rules, regulations or a policy in that regard and rightly so, as the statute itself has not created any segregation and distinction amongst the various uses the internet facility can be put to, while granting exemption. There are no lawful means to determine or charge FED as being sought by the petitioner. 4. It hardly need any mention that the charges on the subject can only be imposed in unambiguous and categorical terms, and not by presuming any intendment. It is now well settled that a fiscal provision of a statute has to be construed literally in favour of the tax payer. 5. As discussed earlier, internet services/facilities are wholly exempted from FED. Nothing extraneous can be read into the relevant entry to qualify or restrict such exemption. The respondent cannot be allowed to be deprived of the statutory benefit through misinterpretation and misreading, as attempted by the department. Even in case of any ambiguity regarding any exemption or concession, the same is to be resolved in a manner CP 3317&13318/18 5 beneficial to the tax payer and not in the manner that would lead to obliteration of his rights and liabilities. 6. In view of the foregoing, we have found the impugned judgment, in consonance with the law, the same does not call for any interference by this Court. The petitions are accordingly dismissed. Judge Judge Judge Islamabad the 22nd January, 2020 ‘NOT APPROVED FOR REPORTING’ Aamir Sh, /-

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN CIVIL PETITION NO.332-P/2017 (On appeal from the judgment dated 9.5.2017 passed by the Peshawar High Court, Bannu Bench in W.P.No.488-B/2016) Govt. of KPK through Secretary Home & Tribal Affairs Department Peshawar & others ….Petitioners Versus Mehmood Khan ….Respondent For the Petitioner : Mr. Umar Farooq Adam, Addl.AG-KPK For the State : N.R. Date of Hearing : 13.9.2017 JUDGMENT Dost Muhammad Khan, J.— Government of KPK (the petitioner) seeks leave to appeal against the judgment of the Peshawar High Court, Bannu Bench, Bunnu dated 9.5.2017, whereby the Constitution Petition of the respondent was accepted and he was allowed the benefit of section 382-B Cr.P.C. along with general and special remissions earned during the period of detention/imprisonment like his co-prisoners. 2. Learned Additional Advocate General, KPK urged with vehemence that if any Court omits to grant the benefit, referred to above, subsequently, the same cannot be sought through independent petition because that will amount to a review of the original judgment which is not permissible under the criminal law and criminal justice system. 3. The second limb of his submissions was that a cell phone without “SIM” was recovered from the possession of the CP.332-P/2017 2 respondent inside the jail premises thus, he was denied remissions according to law. 4. The un-amended section 382-B Cr.PC. was couched in words/ language where for awarding benefit of detention period pending trial the Court was required to record reasons there for, however, after amendments, to refuse such concession the Court has to record reasons for such refusal. 5. In the present case, as has been rightly pointed out, while partly accepting the appeal against death sentence awarded under section 302 PPC to the respondent, it was reduced to life imprisonment, however, the learned Division Bench of the High Court conveniently ignored the mandatory provision of section 382-B Cr.PC, which was an omission of technical nature and not substantive one, which would not attract any bar to amend the original judgment but through the impugned judgment the omission made was rectified and the command of the law was given effect in letter and spirit. 6. It is the obligatory duty of the Judges to apply the correct law to a lis, and not of the litigant to point out the law applicable. Even the parties to a lis are under no obligation to hire the services of a lawyer/ counsel for pleading their case because the primary duty to do the justice and to apply the correct law to the facts of a case, is the exclusive duty of the Judges. This principle has a legitimate background based on well entrenched “MAXIM” that ‘law is written on the sleeves of the Judges and they are supposed to know each and every law by heart’, thus any inadvertent omission on the part of the Court/Judges shall not CP.332-P/2017 3 deprive the party entitled to any relief if the law directs in clear language to be granted. 7. As highlighted and explained above, now extension of benefit of pre-conviction detention period be deducted from the sentence awarded is mandatory and for refusal to grant the same, cogent, strong and convincing reasons are to be recorded. In the instant case it was a simple omission on the part of the learned Bench of the High Court to look at the substance of the mandatory provision of section 382-B Cr.PC, thus it can be rectified at any stage and even the Jailer in whose custody the prisoner is undergoing sentence, is bound to award such benefit even if the judgment is silent unless the Court for cogent and convincing reasons has expressly refused to grant such benefit. 8. Similarly the general and special remissions earned by the other co-prisoners of the respondents if are denied to him, would amount to discriminatory treatment, prohibited by the command of Article 25 of the Constitution. 9. The Jail Manual, particularly Chapter 8 regulates the grant and refusal of remissions to prisoners, which requires no debate, however, the Federal Government through amendments in certain offences has denied such remissions, which are expressly mentioned therein. 10. In the instant case, allegedly a cell phone/ mobile phone without “SIM” was recovered from the possession of the respondents, however, whether any inquiry was held that for what purpose he was having it and whether it was actually recovered from his possession or someone else, is a question mark because on the mere statement of the lower staff he was netted into this CP.332-P/2017 4 fallacious charge. If the cell phone was having no “SIM” then, it was a useless article like a child toy and nothing more, therefore no rule of the jail manual permits to decline re-arrangements on this ground, thus the direction given by the High Court to grant special and general remissions to the respondents is fully justified in law. Both the submissions, on the basis of which this petition has been filed, appear flimsy and unfounded, rather against the mandatory provision of law. Therefore, this petition is found without legal merits and is dismissed. Leave to appeal is declined. Copy of this judgment be sent to the Registrar of the Peshawar High Court and the Superintendent Jail where the respondent is confined. Judge Judge Islamabad, the 13th September, 2017 Nisar/- “Approved for reporting’

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 3345 OF 2016 (On appeal against the judgment dated 13.10.2016 passed by the Islamabad High Court, Islamabad in Writ Petition No. 3394/2016) Muhammad Shoaib Shaheen and others … Petitioners VERSUS Pakistan Bar Council and others … Respondents For the Petitioners: Mr. Hamid Khan, ASC Mr. Shoaib Shaheen, ASC Mr. Ahmed Nawaz Ch, AOR (Absent) For Respondents (12): Ms. Asma Jehangir, ASC Syed Qalb-i-Hassan, ASC Ch. Akhtar Ali, AOR For Respondent (5): Mr. Kamran Murtaza, ASC For Respondent (8): Mr. Azam Nazir Tarar, ASC For Respondent (9): Mr. Muhammad Ahsan Bhoon, ASC For Respondent (20): Mr. Qousain Faisal, ASC Mr. Ghulam Mustafa Kandowal, ASC Syed Rifaqat Hussain Shah, AOR For other Respondents: N.R. For Attorney General: Mr. Abdul Rashid Awan, DAG Date of Hearing: 16.11.2016 JUDGMENT FAISAL ARAB, J.- The petitioners and the respondent Nos. 3 to 22 are all elected members of the Pakistan Bar Council (Bar Council). The Bar Council, in its meeting held on 03.09.2016 by exercising majority vote reconstituted all its Committees that were constituted earlier on 25.01.2016. This was done by first suspending Rule 100 of the Legal Practitioners and Bar Councils Rules, 1976 in exercise of the power contained in Rule 185. At that CIVIL PETITION NO. 3345 OF 2016 2 time the tenure ordinarily available to the Committees under Rule 100 had not yet expired. The petitioners challenged the reconstitution of the Committees in Writ Petition No. 3394/2016 before the Islamabad High Court, which was decided vide judgment dated 13.10.2016. It was held that the term of the Committees is terminable by exercising the majority vote of the Bar Council. It was further held that as the Bar Council voted for the reconstitution of its Committees in a meeting in which it was not an item on its agenda, let a fresh meeting for the said purpose be convened. Aggrieved by such decision, the petitioners have preferred the present petition for grant of leave to appeal. 2. The main ground taken before us by petitioners’ counsel is that once the Bar Council constitutes a Committee, it shall continue to function without being interrupted by Bar Council in any manner until its entire term available under Rule 100 expires. In other words no change in the composition of Committees’ membership could be brought about during subsistence of the term available to the Committees. The petitioners’ counsel further submitted that Rule 185 was wrongly invoked as it is meant for removing difficulties only and cannot be used to remove the protection accorded to the tenure of the Committees under Rule 100. In the alternative, it was also argued by the petitioners’ Counsel that even if it is assumed that the Bar Council possesses the power to reconstitute its Committees before their term expires, in the past this has been done with the consensus of all members of the Bar Council whereas in the present case no such consensus was reached and thus the past CIVIL PETITION NO. 3345 OF 2016 3 practice which also has the force of law was not honoured by the Bar Council. The counsel for the respondents, on the other hand, argued that nothing in the Legal Practitioners & Bar Councils Act, 1973 or the Rules bars the Bar Council from reconstituting its Committees or remove the members from the Committees as the powers which the Committees exercise under the law originally vest in the Bar Council. 3. It may be clarified at the very outset that the Chairman of the Disciplinary Committee as well as Enrolment Committee are nominated by the Chief Justice of Pakistan from amongst serving Judges of this Court. They being ex-officio members are not under the authority of the Bar Council so they only cease to be members of the Committees when they cease to be judges of this Court or the Chief Justice of Pakistan in their place nominate other judges as Chairmen or the Committees which they chair complete their term. Except for these two ex- officio members, the rest of the members of the Committees are chosen by the Bar Council from amongst its members and the issue involved in this case relates to such chosen members only. 4. Now taking the issue of past practice first, the history on this issue shows that on four occasions in the past, the Pakistan Bar Council reconstituted its Committees before expiry of their term. This happened in 56th meeting of the Bar Council held on 12.02.1987, 177th meeting held on 23.08.2008, 193rd meeting held on 25.5.2012 and 204th meeting held on CIVIL PETITION NO. 3345 OF 2016 4 31.1.2013. In the 56th meeting, all Committees were reconstituted with unanimous decision. In 177th meeting, Committees were reconstituted by majority vote. Though objection under Rule 100 was taken in this meeting but the same was overruled. In 193rd and 204th meetings, Committees were reconstituted again by majority votes after suspending the operation of Rule 100 by invoking Rule 185. It can be seen that only on one out of four occasions in the past, reconstitution was done with the consensus of all members of the Bar Council. In the remaining three occasions, decision was taken by majority vote. From this, a consistent past practice of reaching the decision with consensus is not established. Had that been so, still the same cannot be given effect to for the simple reason that the petitioners have themselves based their claim on the interpretation of the Legal Practitioners and Bar Councils Rules 1976, which have the force of law whereas the claim of establishing past practice based on consensus occurred only once and that too when the Rules were already in operation. No customary practice or usage can be sought to be enforced which is contrary to the codified law. Past practice can never substitute codified law as no law can be made inoperative through obsolescence as long as it is in the field. Therefore, unless a solution to an issue could not be found in the law itself, the plea of past practice cannot succeed. 5. What triggered reconstitution of the Committees on 03.09.2016 is not an issue before this Court to decide. The issue CIVIL PETITION NO. 3345 OF 2016 5 is, was it done in a way that is permissible in law? The resolution of the controversy with regard to the tenure of the Committees verily lies in exploring the real intent behind incorporating Rule 100 in the Legal Practitioners and Bar Councils Rules, 1976. Rule 100 reads “The term of every Committee shall be the same as that of the Council itself unless the Bar Council when constituting the Committee provides otherwise.” This Rule has two parts. The first part reads “The term of every Committee shall be the same as that of the Council itself”. What this part conveys is that the Committees cannot outlive the life of the Bar Council that has constituted them. The day the term of office of a Bar Council comes to an end the then existing Committees stand decommissioned and all unfinished business of the Committees stand terminated. All members of the Committees then shall be deemed to be released of their authority and responsibility arising from or in connection with their assignment on the Committees. The second part of the rule reads “unless the Bar Council when constituting the Committee provides otherwise”. This part is simply intended to convey that it is not necessary that the term of the Committees to always remain co-extensive with the life of the Bar Council as the Committees could also be constituted for a different term i.e. a term which is shorter than the life of the Bar Council. Obviously under the second part of the Rule, no term can be fixed which lasts beyond the life of the Bar Council as it would defeat the very object of the first part of the Rule. So the second part of the Rule facilitates fixation of a term that is shorter than the term of CIVIL PETITION NO. 3345 OF 2016 6 the Bar Council. Rule 100 thus only provides for the maximum term for which the committees can last i.e. either equal to the life of the Bar Council or any period shorter than that. Thus the only purpose of incorporating Rule 100 was to provide terminus ad quem upon expiry of which the Committees automatically stand decommissioned. Nothing more is to be read into this Rule. By fixing a terminus point for the Committees under Rule 100, does it mean that the Bar Council cannot prematurely reconstitute its Committees as and when it deems appropriate? This is precisely the question, which needs to be explored next. 6. Lets first examine what is the status of the Committee. All functions of the Pakistan Bar Council are described in Section 13 of the Legal Practitioners and Bar Councils Act, 1973. Section 15 of the Act read with Rule 86 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 empowers the Bar Council to constitute Committees in order to entrust them the tasks that fall within the province of the Bar Council. So the Committees are various bodies of persons whose members are merely the delegates chosen by the Bar Council from amongst its members to carry out certain assignments on its behalf. The Committees being instruments of the Bar Council, any matter or proceedings pending before a Committee can be withdrawn by the Bar Council and disposed of by itself. This is evident from Rules 86 & 86-A(iii). For ease of comprehension this relationship is to be understood as being similar to that of a principal and agent. The Bar Council being CIVIL PETITION NO. 3345 OF 2016 7 the principal body, its satisfaction with regard to the functioning of its Committees has to be kept paramount while dealing with the issue in hand. 7. A situation may arise where the Bar Council realizes that a Committee is not functioning the way it thought it would and likes to revisit its decision with regard to the composition of Committee’s membership. Additionally, as a Committee has no power of its own to punish its members for disorderly conduct, its only recourse being to report the matter to the parent body i.e. the Bar Council to take corrective measures. A genuine need therefore may arise to replace all or some of the chosen members of a Committee on account of neglect of duty or violation of Bar Council’s mandate or for any other reason. To take such corrective measure, the only option left with the Bar Council is to reconstitute the Committees even though their tenure had not expired. It is not hard to imagine two distinct situations to legally co-exist, one fixing the maximum tenure for an office as provided by Rule 100 and at the same time the other enabling premature termination of such tenure. So existence of the first situation does not ipso facto eliminate the existence of the second. The co-existence of these two distinct situations, therefore, does not create any contradiction. To further this point, the principle laid down in Section 16 of General Clauses Act can be referred with considerable advantage. It lays down the principle of general law that where a power confers any office on a person then the authority also has the power to CIVIL PETITION NO. 3345 OF 2016 8 remove him from that office even if his tenure has not expired. Thus Section 16 furnishes a general doctrine that ‘a power to appoint includes the power to remove’. Sir John Woodroffe in Chapter VI of the 6th Edition of his book ‘Law relating to Receivers’ had elaborated the exercise of such power by stating “The power to terminate flows naturally and as a necessary sequence from the power to create………It is a necessary adjunct of the power of appointment and is exercised as an incident to, or consequence of, that power; the authority to call such office into being necessarily implying the authority to terminate his function when their exercise is no longer necessary, or to remove the incumbent for an abuse of those functions or for other cause shown, …..”. So mere fixation of term of an office does not necessarily mean that the possibility to prematurely terminate such term stands ruled out. In case it is held that Bar Council has no such power, the only other option left with the Bar Council would be to remain helpless, do nothing and let the affairs of the Committee be, till the new Bar Council is elected. This could not have been intended by the Legislature. The power to reconstitute its Committees exists and always will in the hands of the Bar Council. Now the premature termination of any office can be brought about either after fulfilling certain conditions that are prescribed by law or it can be done with absolute authority. In case the law provides that certain conditions are to be first met then the termination would become effective only after the requisite conditions are fulfilled. Where no preconditions are attached by law for the exercise of CIVIL PETITION NO. 3345 OF 2016 9 such power, as in the case of a principal and his agent (unless agency is coupled with interest), premature termination of the tenure of an office can be brought about instantaneously. Hence, subject to fulfilling the conditions for removal, if any prescribed by law, the power to prematurely terminate an office, such as that of the Committee members, who exercise delegated powers, nevertheless exists in the hands of the Bar Council that created it. It is therefore not legally tenable to maintain that simply because Rule 100 has made the term of the Committees co-terminus with the term of the Bar Council or any other term has been fixed by the Bar Council under Rule 100 at the time of creating them, the same cannot be reconstituted and shall remain absolutely immune from Bar Council’s interference till their whole term expires. 8. When the Bar Council reconstituted its Committees in its meeting held on 03.09.2016 by exercising majority votes, all that it did was that it withdrew its own delegated authority from certain members of the Committee and entrusted it to others. No provision of the Act or the Rules requires that an opportunity of hearing was to be first given to a member of the Committee which the Bar Council intended to prematurely replace. Not even a notice period was envisaged to be given to the member sought to be removed from the Committee before induction of a new member in his place. The Committees of the Bar Council exercise delegated authority and the power to delegate an authority includes power to withdraw such CIVIL PETITION NO. 3345 OF 2016 10 authority. In other words it can be said ‘What the Bar Council giveth, the Bar Council can taketh away.’ A Committee, therefore, can be discharged in the same manner, it was established. All that is required is a majority vote (Rule 96). That is the only requirement which the Bar Council has to fulfill. It may be pointed out that this power of the Bar Council to reconstitute its Committees is not meaningless. It is intended not to make withdrawal of authority by a principal from its agent questionable in a Court of law. So the security of tenure, insofar as membership in a Committee is concerned, is out of the equation. Only the members in their capacity as members of the Bar Council enjoy security of tenure who cannot be removed from the membership of the Bar Council unless they stand disqualified in the circumstances narrated in Section 11C read with Section 11B of the Legal Practitioners and Bar Council Act, 1973. As for the members of a Committee chosen by the Bar Council to exercise delegated authority are concerned, there exists no legal basis for them to claim that they possess a vested right for their continuance on the Committee against the will of the parent body that created it and resist their premature removal from the membership of the Committee in disregard of the majority decision. It can be said that the Committees live by majority vote and die by majority vote. The Bar Council being the principal body, whose satisfaction is to be kept paramount, simply requires majority vote to make changes in the membership of its Committee, which power it exercised in its meeting held on 03.09.2016. In order to make premature CIVIL PETITION NO. 3345 OF 2016 11 changes in the composition of Committees, the Bar Council does not even need to suspend the provisions of Rule 100 by invoking Rule 185. If that was done in the present case or on couple of occasions in the past, it could only be termed as something done out of abandoned caution as the purpose of incorporating Rule 100 in the Legal Practitioners and Bar Councils Rules, 1976, as already discussed in detail, is altogether different. 9. To sum up, Rule 100 of the Legal Practitioners and Bar Councils Rules, 1976, cannot be interpreted so as to tie the hands of the Bar Council and render it so powerless that it cannot reconstitute its Committees as and when deemed appropriate. Committee is a body that exercises authority originally vested in the Bar Council under Section 13 of the Act, which is delegated to the Committees through the mandate of law (Section 15 and Rule 86) or through a decision of the Bar Council itself. Hence the members of the Committees simply hold office in the Committees during the pleasure of the Bar Council. In its capacity as its principal, the Bar Council has inherent power to decide in an appropriately convened meeting to reconstitute its Committees (which in the present case was not done). In exercise of such power, it may on its own choose to give reasons though it is not obliged by law to do so. Rule 100, therefore, cannot be used as a shield to prevent the Bar Council from exercising its power to withdraw its delegated authority from a set of Committee members and entrust it to another. CIVIL PETITION NO. 3345 OF 2016 12 10. In view of what has been discussed above, this petition is dismissed and leave refused. Let the directions contained in paragraphs 24 and 25 of the impugned judgment be given effect to. JUDGE JUDGE JUDGE Islamabad, the Announced on ______________ by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram CIVIL PETITION NO. 3345 OF 2016 13 SH. AZMAT SAEED, J.- I have had the privilege of examining the judgment of my learned brother Mr. Justice Faisal Arab dismissing the instant Civil Petition. I agree with the conclusions drawn, however, I may add my own reasons. 2. Section 15 of the Legal Practitioners & Bar Councils Act, 1973, pertains to the Committees of the Pakistan Bar Council. The said provision reads as follows: “15. Committees of the Pakistan Bar Council.—(1) The Pakistan Bar Council shall constitute the following Committees, namely:-- (a) a disciplinary Committee consisting of a Judge of the Supreme Court nominated by the Chief Justice of Pakistan, who shall be its Chairman, and four other members elected by the Council from amongst its members: Provided that the Attorney-General for Pakistan shall not be a member of the disciplinary Committee; (b) an executive Committee consisting of seven members elected by the Council from amongst its members; and (c) an enrolment Committee consisting of a Judge of the Supreme Court nominated by the Chief Justice of Pakistan, who shall be its Chairman, and two other members elected by the Council from amongst its members. CIVIL PETITION NO. 3345 OF 2016 14 (2) The Pakistan Bar Council may constitute from amongst its members such other Committees, including a legal education Committee, as it may deem necessary for the performance of its functions under this Act, and may authorize any such Committee to co-opt as its members any other persons, no exceeding such number as the Council may determine. (3) The Chairman of every Committee shall be entitled to vote and, in case of equality of votes among the members of the Committee, shall have a second vote.” A bare reading of the above-said provisions reveals that two sets of Committees are envisaged; one as mentioned in sub-section (1) i.e. (a) disciplinary Committee, (b) executive Committee, and (c) enrolment Committee; and second set pertains to the Committees under sub-section (2), reproduced herein above. It is obvious that the Members of the first set of Committees mentioned above are elected, while with regard to the second set of Committees referred to in sub-section (2), no requirement of electing its Members is mentioned in the said provision. CIVIL PETITION NO. 3345 OF 2016 15 3. The first set of Committees mentioned in sub-section (1) exercised statutory powers as mentioned therein while the second set of Committees referred to sub-section (2) exercised powers as may be delegated by the Bar Council. 4. An elected Office whether Constitutional or Statutory as a general principle of law is effective for the tenure as prescribed in the Constitution or the Statute, as the case may be. A person so elected can only be removed from Office in accordance with the provisions of the Constitution or the Statute under which he was elevated, be it by a vote of no confidence impeachment recall or otherwise. No general powers envisages in the Electors to unseat such elected officials otherwise than the procedure as provided in the Statute applicable. 5. In the instant case, the life of the Committee is determined by Rule 100, which is reproduced hereunder for ease of reference: “100. The term of every committee shall be the same as CIVIL PETITION NO. 3345 OF 2016 16 that of the Council itself unless the Bar Council when constituting the committee provides otherwise.” The aforesaid Rule makes it clear and obvious that the life of the Committee cannot extend beyond the life of the Bar Council by electing the same. However, the Bar Council has been empowered to fix the tenure of the Committee at the time of constituting the same. In the circumstances, the minimum tenure of the Committee is not fixed by the Statute but by the Bar Council and such power is to be exercised while constituting the Committee. Such power once exercised or not exercised is not exhaustive and there is nothing to prevent the Bar Council from re-exercising of such power in terms of the principle laid down in Section 14 of the General Clauses Act, 1897. 6. The reasons adopted by my learned brother Mr. Justice Faisal Arab, would obviously hold true with regard to the Committees CIVIL PETITION NO. 3345 OF 2016 17 constituted or rather reconstituted under Section 15(2) ibid. Judge CIVIL PETITION NO. 3345 OF 2016 18 UMAR ATA BANDIAL, J. – The petitioners and the respondents No.3 to 22 are Advocates of this Court who are also elected members of the Pakistan Bar Council (“Council”). The Council performs its functions and duties through several Committees having members that are elected by the Council. Each of the petitioners is the elected Chairman of one of the Committees constituted by the Council. They challenge the judgment dated 13.10.2016 passed by a learned Division Bench of the Islamabad High Court which holds that the term of the Committees elected by the Council is terminable by the majority vote of the Council. However, since the Council had on 03.09.2016 voted for the reconstitution of all its Committees without notice in the agenda for that meeting, therefore, the learned High Court has remanded the said matter of reconstitution of the Committees to the Council for reconsideration in a meeting of the Council properly convened for the purpose. 2. The petitioners maintain that the Legal Practitioners & Bar Councils Act, 1973 (“Act”) read with Pakistan Legal Practitioners & Bar Councils Rules, 1976 (“Rules”) framed pursuant to the Act envisage a term of five years for the members of the Committees constituted by vote of the majority of the Council on 25.01.2016. Consequently, the impugned judgment has seriously erred by upholding the purport of the majority of the Council on 03.09.2016 to prematurely dissolve and reconstitute all existing Committees of the Council barely eight months after they were elected. 3. The Council was first constituted in the year 1973 under the provisions of the Act. At that time the Act also envisaged four Provincial Bar Councils. Subsequently, by an amendment in the Act made in the year CIVIL PETITION NO. 3345 OF 2016 19 2014, the Islamabad Bar Council was also added at the tier of the Provincial Councils. Under Section 4 of the Act: “The term of every Bar Council shall be five years beginning on the first day of January following the general elections to the Provincial Bar Councils and Islamabad Bar Council; at the end of each term the members of the Bar Council shall cease to hold office.” (emphasis supplied). 4. The Council consists of 23 Members (section 11) who are elected on the basis of a single transferable vote by the members of the Provincial Bar Councils and the Islamabad Bar Council. The Attorney General for Pakistan is the ex-officio Chairman of the Council. The members of the Council elect a new Vice-Chairman in the month of January every year [section 12(3)]. The Vice Chairman is the executive head of the Council having functions and duties specified in Rule 85: “85. Functions and duties of a Vice-Chairman. (a) In the absence of a Chairman the Vice-Chairman shall exercise the powers and the duties of a Chairman. (b) He shall be responsible for co-ordinating the functions of all the Committees of a Bar Council. (c) He shall exercise control over the employees of a Bar Council and shall be responsible for its smooth running. (d) He shall exercise control over the functionaries of a Bar council.” 5. It is evident that the Vice Chairman of the Council has a supervisory and coordinating role whilst the functions and duties of the Council, inter alia, enumerated in Section 13, are performed by several Committees having members elected by the Council (Section 15 and Rule 86). Three of such Committees have statutory force and are of a permanent character. These are the Disciplinary Committee headed by a Judge of the Supreme Court having four members elected by the Council from amongst its members; the Enrolment Committee chaired by a Judge of the Supreme Court having two members elected by the Council from amongst its members; and the Executive Committee consisting of seven CIVIL PETITION NO. 3345 OF 2016 20 members elected by the Council from amongst its members. The Council is empowered to constitute such other Committees from amongst its members, including a Legal Education Committee, as may be necessary for the performance of its functions. The Act makes fairly detailed provisions in respect of the powers and proceedings of the Disciplinary Committee whose decisions are appealable before the Supreme Court (Section 48). Likewise for the Enrolment Committee which is the final authority for enrolment of Advocates of the High Courts (Section 32). The Act also constitutes a Disciplinary Tribunal (Section 42) headed by a Judge of the Supreme Court and having two members of the Council elected for the purpose. The formation of the other Committees (presently sixteen) and disposal of matters regarding management of the Council and the conduct of its affairs are also done by the majority vote of the Council under the Rules framed by the Council in exercise of power conferred by Section 55 of the Act. 6. Section 55(f) of the Act envisages rules to be framed on the subject of “the constitution and functions of any Committee of the Pakistan Bar Council and the term of the office of the members of any such Committee.” In exercise of said statutory authorization by Section 55(f) of the Act, the Council has framed Rule 100 which provides as follows: “100. The term of every Committee shall be the same as that of the Council itself unless the Bar Council when constituting the Committee provides otherwise.” (emphasis added) 7. It is contended by the learned counsel for the petitioners that Section 4 of the Act provides for the term of the Council to be five years and for the members of the Council to hold their office until the end of CIVIL PETITION NO. 3345 OF 2016 21 such term. Thus, the terms of the Council and of its members are co- extensive. It is argued that Rule 100 which is framed in exercise of power under Section 55(f) to fix “the term of office of the members of any such Committee” adopts the logic of Section 4 of the Act by treating the term of the Committees and their members to be coterminous, unless the Council consciously decides to shorten the members’ tenure by providing otherwise. In the present case, the Council elected all its Committees on 25.01.2016 without limiting the term of office of their members in the manner envisaged by Rule 100. Accordingly, it is argued that the term of office of the members of all Committees extends until January, 2021. 8. On the other hand, learned counsel for the respondents have emphasized that Rule 100 specifies merely the term of every Committee and not the term of office of its members. All decisions of the Council are taken by majority vote recorded by show of hands (Rule 96). According to Rule 94, the majority of total members of the Council can transact any business with the permission of the Chair even if it is not listed on the agenda. The Committees are answerable to the Council under Rule 86A(i) whereby the minutes, proceedings and resolutions adopted by the Committees must regularly be laid before the Council for its approval. Rule 86A(ii) epitomizes the majoritarian principle of governance of affairs of the Council whereby the Council may of its own motion or otherwise revise or issue directions to a Committee, review any proceedings taken, order passed or any decision made by such Committee of the Council. According to Rule 86A(iii), the Council may, if so inclined, withdraw any matter or proceedings pending before a Committee and dispose of the same itself. In the foregoing background, it is argued that the members of the Committees are agents of the Council who have not been assured a CIVIL PETITION NO. 3345 OF 2016 22 fixed term of office. Whereas the Committees continue to function for five years, their members can be removed, changed or shuffled by the Council at any time to improve performance of the functions and duties of the Committees. 9. The minutes of the meeting of the Council held on 03.09.2016 record that all twenty Committees of the Council and its Disciplinary Tribunal were reconstituted by majority vote of the Council. These include the three statutory Committees, namely, the Disciplinary Committee, Enrolment Committee and Executive Committee, envisaged in Section 15 of the Act and also the Disciplinary Tribunal constituted under Section 42 of the Act. Alongwith six Appeals Committees for the Provinces and the Capital Territory, composition of ten other Committees was changed. As a result eleven members of the Council who were the elected members of the existing Committees and the Tribunal were replaced by other eleven members who had previously been excluded from membership and/or participation in all such fora. The said sweeping change in the membership of all twenty Committees of the Council was made without assigning cause, fault or reason. 10. To resolve the dispute regarding the validity of the action by the Council to reconstitute all its Committees and Disciplinary Tribunal, it became necessary for us to inquire the background of the differences between the parties. It transpires that the majority of votes in the Council has shifted to the erstwhile opposition group in the Council. As a result of the impugned action, members of the erstwhile opposition group have been elected as members of all the Committees of the Council thereby excluding the previous members thereof. The Council has twenty three elected members. The impugned reconstitution of the Committees and CIVIL PETITION NO. 3345 OF 2016 23 Disciplinary Tribunal of the Council was accomplished on 03.09.2016 by a majority of twelve members of the Council by invoking the Council’s power under Rule 185 to suspend Rule 100 reproduced above. Rule 185 provides as follows: “185. The Pakistan Bar Council, may by a resolution, passed by it in its meeting, suspend wholly or partly, any Rule for such period and subject to such conditions, as it may deem fit and expedient.” (emphasis supplied) 11. It is a matter of fact that the Council did not specify any shorter term for its Committees at the time of their constitution. According to the express provision of Rule 100, the term of the Committees last during the term of the Council. The petitioners have objected that Rule 185 cannot be invoked for suspending a substantive provision of the Rules which confers a right upon the members of the Committees of the Council to a fixed term of office as contemplated by Section 55 (f). It is a power meant for removing difficulties, inconsistencies and procedural obstacles blocking an emergent action by the Council that is otherwise in accordance with law. 12. The respondents reject such objection for three reasons. Firstly, that nothing in the Act or the Rules bars the reconstitution of the Committees or the removal of their members. Secondly, the conduct of affairs of the Council is squarely vested in the hands of the majority in the Council which can reconsider its previous decisions, inter alia, under Rule 98; and thirdly, that any fixed term of office claimed by the petitioners under Rule 100 is revocable by the Council under its power derived from Section 21 of the General Clauses Act, 1897. Section 21 ibid recognizes a competent authority to, inter alia, rescind rules, bye-laws, notifications or CIVIL PETITION NO. 3345 OF 2016 24 orders that have earlier been issued by it. For the sake of convenience, Section 21 ibid is reproduced below: “21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules, or bye-laws - Where, by any Central Act or Regulations, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and condition if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.” 13. The arguments rendered by the learned counsel for the contesting parties have been heard and considered carefully. 14. Disregarding the personal or political differences, if any, between the members of the Council, there is a legal lacuna in the Act and the Rules that possibly represents the true origin of the dispute between the parties. Neither the Act nor the Rules make any provision for removal from office of an elected Chairman or member of a Committee of the Council by any means whatsoever. Section 11(c) of the Act merely provides for grounds for cessation of membership of the Council. These grounds include: appointment to an office of profit in the service of Pakistan; suspension or removal from practice on the ground of professional misconduct; the incurrence of disqualification on account of dismissal or removal from the service of Government or of a public corporation; conviction for an offence of moral turpitude; declaration of being a tout or an undischarged insolvent. However, both the Act and the Rules do not address the matter of cessation of membership of Committees or the Disciplinary Tribunal. The consequences of loss of confidence by the Chairmen and members of the Committees of the Council or their inefficiency, incompetence, misconduct in the performance of their duties and functions are altogether ignored. Hence, CIVIL PETITION NO. 3345 OF 2016 25 no impeachment, recall or vote of no confidence mechanism is available in the Act or the Rules for authorizing remedial action by the Council. This is notwithstanding the fact that the conduct of affairs of the Council are governed by democratic norms under the Act and the Rules. As a result of the silence of the Act and the Rules on the subject of accountability for loss of confidence, commission of default or misconduct by the Chairmen and members of the Committees of the Council, the impugned action removing existing Chairmen and members of the Committees is devoid of express legal cover under the Act and the Rules. Therefore, the respondents have resorted to justify the impugned action by suspending Rule 100 and are relying on external aids like powers conferred by the General Clauses Act, 1897 and the democratic principle of majoritarian rule. 15. In the above background, the primary issue highlighted in the submissions made by the learned counsel for the parties is whether the Council is rendered powerless for the claimed term of five years to touch any Chairman or member of a Committee even though he has lost confidence of the House or he has committed default or misconduct in the performance of his duties. 16. In order to address the said question, the route adopted by the respondent majority in the Council to deal with the situation through the impugned action requires examination. As a first step, the agenda dated 29.08.2016 circulated for the meeting of the Council on 03.09.2016 did not include any item regarding the reconstitution of the Committees of the Council. The additional agenda circulated on 02.09.2016 also did not include the said item. It seems, however, that later in the day on 02.09.2016 a requisition for the reconstitution of all Committees of the CIVIL PETITION NO. 3345 OF 2016 26 Council was filed by eleven members of the Council before its Chairman, learned Attorney General for Pakistan, who directed the same to be placed before the House in its meeting already scheduled for 03.09.2016. At the meeting, the House firstly proceeded to exercise its power under Rule 185 to suspend the operation of Rule 100 till the end of the meeting. No reason for suspending the said rule is recorded in the minutes. Thereafter, with the permission of the Chair the majority of the total members of the Council exercised power under Rule 94 to take up and transact business outside the agenda of the meeting. Following that the matter of wholesale reconstitution of the Committees was considered by the Council which voted in new members thereof through the impugned action. 17. It may be observed that Rule 100 mandates that Committees of the Council shall have a term of five years except where the Council expressly specifies a shorter term whilst constituting such Committees. Suspension of Rule 100 by the majority of the Council purportedly arrested the term of the Committees under the said rule which was implausibly presumed to authorize the election/reconstitution of new Committees. Generally the power conferred on a competent authority to suspend or relax rules is construed narrowly because it permits deviation from the applicable law. Accordingly, any condition laid down in the enabling law for suspending rules is enforced strictly. The power is construed to advance the purpose and enforce the provisions of the enabling legislation. Reference is made to Rule 288 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 which permits “Suspension of Rules” by the Speaker. However, the ground for invoking this power is to overcome difficulty or inconsistency in the application of the said Rules. The object of the said power is to facilitate CIVIL PETITION NO. 3345 OF 2016 27 the enforcement of the Rules of Procedure. Likewise, Section 246 of the Income Tax Ordinance, 2001, empowers the Federal Government to make orders consistent with the provision of the Ordinance in order to remove a difficulty in the enforcement of the provisions of the Ordinance. The same principle is expressed by Section 24 of the Civil Servants Act, 1973. Suspension of Rules cannot be resorted for achieving a purpose extraneous to applicable law but for promoting the object of or for the proper application of such law. 18. In the present case, no difficulty, or for that matter, inconsistency in the application of the Act or the Rules is noted by the Council to justify the exercise of its power under Rule 185 to suspend Rule 100 of the Rules. In the case of Mr. Fazlul Quader Chowdhry vs. Mr. Muhammad Abdul Haque (PLD 1963 SC 486), the exercise of power by the President to make adaptation in the provisions of the Constitution in order that the Constitution as a whole should be brought into force was questioned. In that context, the meaning of the expression “necessary and expedient” occurring in Article 224(3) of the Constitution of 1962 for making such adaptation came under review of this Court. It was held that the power was meant for the purpose of removing a difficulty of one of the expressed kinds and not to achieve a purpose that was not envisaged in the Constitution. Justice S.A. Rehman (as his lordship then was) observed as follows: “Clause (3) of Article 224 does not confer unfettered power on the President to make any amendments that he might choose, in the Constitution. The power is qualified by the condition that it should be exercised for the purpose of removing any difficulties that may arise in bringing the Constitution or any of its provisions into operation. Out of these words, a power cannot be spelt out to alter the Constitution itself so as to change it, for instance from the Presidential form which it clearly contemplates, to the CIVIL PETITION NO. 3345 OF 2016 28 Parliamentary form. The Constitution as a whole has to be brought into force and if any difficulty arises in the machinery of enforcement, it could certainly be removed by an order of the President, within the specified time, but the word ‘difficulty’ could not receive such a large connotation as to comprehend within its scope, a drastic alteration such as would revolutionize the scheme of the Constitution itself. …” 19. No provision of the Act or the Rules envisages the removal of members of the Committees of the Council or the reconstitution of such Committees at all, let alone at will. Therefore the suspension of Rule 100 by the Council did not promote nor remove any difficulty in the enforcement of any specific provision of the Act or the Rules. No ground for dissatisfaction with the Chairmen and members of all Committees was disclosed or discussed in General Meeting of the Council on 03.09.2016. In the circumstances, the Council failed to record any reason for deeming it “fit and expedient” to suspend Rule 100. It is plain that suspensory action by the Council cannot be taken arbitrarily or for a purpose extraneous to the enforcement of the provisions of the Act and the Rules. From the record, it appears that the Council considered term of office provided in Rule 100 to block the removal of the existing Chairmen and members of the Committees. Therefore, Rule 185 was invoked by the Council to overcome that hurdle without realizing that suspension of Rule 100 could not remove the Committees nor authorize the election of new Committees. These actions make out the suspension of Rule 100 to be extraneous and unfair. Be that as it may, any reasonable construction of the Act and the Rules cannot support the suspension of Rule 100 by the Council. CIVIL PETITION NO. 3345 OF 2016 29 20. Dilating further on the meaning and effect of Rule 100, it may also be observed that Section 4 of the Act stipulates the term of the Council as being five years. That term is then expressed by Section 4 to be the period for which a member of the Council shall hold office. Section 55(f) of the Act contemplates specifically for the Rules to provide for “the term of the office of the members of any such Committee.” Rule 100 adopts the method and logic of Section 4 of the Act to indicate the term of a Committee to be five years except when its term is expressly curtailed by the Council at the time of constituting the same. Any reduction in the term of a Committee is intended to be an express act or specific provision. Such curtailment cannot in terms of Rule 100 be presumed nor be deferred for later provision. Moreover, the meaning and effect of Rule 100 is to be construed in the light of its enabling provision, namely, Section 55(f). The statutory mandate in Section 55(f) for the Rules to provide for the “term of the office of the members of any such Committee” means that the expression “Committee” occurring in Rule 100 be construed to include “members of any such Committee.” A Committee is a non-existent entity without its members who are an integral part thereof. This integrality between the collective body and its members is also reflected in the provisions of Section 4 of the Act, by the term of the Council being made coterminous with the term of its members. A joint reading of Section 55(f) with Rule 100 shows an identicity of tenures of both the Committees and their members. The interpretation advanced by the respondents that Rule 100 provides merely for the life of the Committees but does not deal with the term of office of their members is therefore theoretical. It ignores that the empty shell of a Committee is meaningless. In recognition of this fact, Section 55(f) empowers the Council to fix the term not of the Committees CIVIL PETITION NO. 3345 OF 2016 30 but of their members. Indeed, Section 15 mentions at least three Committees having statutory terms which cannot be adjusted by the Council. Clearly, therefore, Rule 100 is dealing with the term of members of Committees. This construction is consistent with reason and also explains the intention of the Council on 03.09.2016 to suspend Rule 100 before reconstituting its Committees. 21. In the foregoing background, the learned counsel for the parties have addressed the Court on the precedents for reconstitution of the Committees of the Council occurring over the period of 43 years since the promulgation of the Act. The learned counsel candidly acknowledge that the absence of any mechanism in the Act and the Rules for removal of the elected Chairmen and members of the Committees of the Council is a deliberate omission by the legislature. The members of the Bar constitute one community, united by the principle to promote the rule of law in the country and to establish and maintain the highest standards of excellence and ethics in the profession of law. Accordingly, in the matters of internal management of the Council, its members are expected to and have risen above their personal differences to take unanimous decisions in the interest of harmony and sound management of the affairs of the Council. This includes the subject of reconstitution of Committees of the Council. Reference has been made by both sides to the proceedings of the 56th meeting of the Council held on 12.02.1987 at Lahore. Paragraph-8 of the minutes of the meeting records as follows: “8. Therefore, Mr. Abdul Haleem Pirzada, with permission of the chair, informed the meeting that to make re-adjustments the Members were unanimous to re-constitute the Committees of the Pakistan Bar Council and proposed the following list of reconstituted Committees. He further said that the Chairman/Members of the Committees previously constituted by CIVIL PETITION NO. 3345 OF 2016 31 the Pakistan Bar Council in 1984, who were not maintaining their past positions had voluntarily agreed to quit and under the new arrangement would be deemed to have relinquished their Chairmenship/Membership.” (emphasis added). 22. As a result of the above noted consensus, eleven Committees of the Council were reconstituted by agreement of all its members. It is contended that the spirit of understanding and harmony prevalent amongst members of the Council was disturbed long afterwards in the year 2008. The minutes of 177th (Requisitioned) meeting of the Council held on 23.08.2008 record that the existing Committees of the Council were reconstituted by the majority of the Council after overruling the objections based on Rule 100, and in the absence of any alleged cause or fault justifying their reconstitution. Again, the minutes of 193rd meeting of the Council held on 25.05.2012 show that certain members of the Committees were replaced by the majority of the Council. In this instance, the power under Rule 185 was exercised to suspend the operation of the Rule 100 before the members of the Committees were replaced. The same action was repeated in the 204th meeting of the Council held on 31.01.2013 but without suspending the operation of Rule 100. 23. So long as there was a spirit of consensus within the Council, the silence of the Rules did not prejudice action by the Council to ensure the confidence of and accountability before the Council on either count. However, it is clear from the recent precedents of the Council’s proceedings that a change has come about in the regulation of its internal affairs. The consensus necessary for unanimity has evaporated and groups have emerged within the fold of the Council. As a result the majority in the Council has asserted its legal authority and clout pursuant to, inter alia, Rules 86A, 91, 94 and 96 to 98. Undoubtedly, the principle of decision CIVIL PETITION NO. 3345 OF 2016 32 by majority vote of members in quorum pervades the body of decisions and proceedings of the Council or its Committees as regulated by the Act and the Rules. The present case concerns the limits, if any, that check the power of the majority vote of the Council; in particular if such vote can override the Rules and rights conferred by the same. 24. The significant feature about the office of the members and of Chairmen of the Committees of the Council is that these are all elected posts. One of the ordinary incidents of an elected office is that it bears a defined term. There may, however, be exceptions for example where an elected office may be held by its incumbent during the confidence of the House that elected him. The offices of the Prime Minister under Article 95 of the Constitution and of the Chief Minister under Article 136 thereof can be retained by the respective incumbents so long as they have the support of the majority of the House that elected them. This rule is enshrined in the right to bring a motion of no confidence under the afore-noted Articles of the Constitution against the respective holders of the said offices. Similar provisions exist in provincial legislation in relation to the offices of heads of Local Governments. In the case of a fixed term of an elected office the incumbent may be removed through his impeachment on specified grounds by the competent House. This is reflected in the provision for removing the President under Article 47 of our Constitution. 25. We have already noted that under, inter alia, Rule 86A, 91, 94, and 96 to 98 of the Rules, the majority of total members in the Council has substantive powers to assume complete control of the affairs of the Committees, to reverse or undo their decisions and also the actions of the Council. It becomes crystal clear that the underlying ethos and basis furnished by the Act and the Rules for the constitution and working of the CIVIL PETITION NO. 3345 OF 2016 33 Council and its Committees is majoritarian rule and democratic decision making. Rule by the chosen representatives of the electorate and the rule of law are the two fundamental pillars of a democratic order. These essential features of a democratic order were succinctly noted by this Court in Federation of Pakistan vs. Muhammad Nawaz Sharif (PLD 2009 SC 644): “54. The Constitution of Pakistan provides for a democratic system of governance, “wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed.” But democracy does not mean merely holding of periodical elections or a government by a political party having majority in the Parliament. It epitomizes the cherished values of freedom, democracy, due process and the rule of law. It encompasses a whole range of sociopolitical and economic rights. …” (emphasis added) 26. In the eyes of the law the holder of an elective office has a different standing from an executive appointee. The former is the winner in a democratic process whilst the latter represents the choice of executive discretion. Executive appointments and action are, inter alia, subject to the provisions of the General Clauses Act, 1897; but elected office bearers cannot be recalled under executive orders unless expressly authorized by the law. By providing the afore-noted motions of no confidence and impeachment, our Constitution and the law install mechanisms for recalling electoral verdicts. These motions possess a certain degree of due process and fairness by expressly granting prior notice and hearing to the affected person before terminating his elected term. The conditions for election to an office, holding the same and removal therefrom are creatures of legislation. Motions of no confidence or of impeachment must be provided expressly by the law and cannot be presumed or imported CIVIL PETITION NO. 3345 OF 2016 34 into the law. The absence thereof in the enabling law grants an uninterrupted term of office to the incumbent rather than conferring a naked power on the electorate/electoral college to repudiate at will or a whim the mandate of its confidence. 27. In the present case, the reliance placed on democratic norms by the majority in the Council to justify their impugned action against elected members and Chairmen of the Committees may have legal force if their majority vote also had the backing of the law. This requirement stems from the fact that the right to elect a person or to remove him from office is a statutory right. In Hamida Begum vs. Provincial Election Authority (PLD 1966 Lahore 560), it is held that “a right to vote is not a common law right, but is a creation of the statute. A dispute as to casting of votes or other matters at an election must be decided under and in accordance with the enacted law.” To the same effect are dicta laid down in Asif Nawaz Fatiana vs. Walayat Shah (2007 CLC 610) and Muhammad Ibrahim Qasmi vs. Election Commission of Pakistan (PLD 2008 Peshawar 84). A lucid statement of the different facets of the said principle is made in Mohan Lal Tripathi vs. District Magistrate Rae Bareilly (AIR 1993 SC 2042 at page 2045) as follows: “2. … But electing representatives to govern is neither a ‘fundamental right’ nor a ‘common law right’ but a special right created by the statutes, or a ‘political right’ or ‘privilege’ and not a ‘natural’, ‘absolute’ or ‘vested right’. ‘Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied.’ Right to remove an elected representative, too, must stem out of the statute as ‘in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers’. Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. … [T]he removal of the appellant by a vote of no-confidence by the Board which did not elect him was subversive of basic concept of democracy. Academically the CIVIL PETITION NO. 3345 OF 2016 35 submission appeared attractive but applied as a matter of law it appears to have little merit. … In modern political set up direct popular check by recall of elected representative has been universally acknowledged in any civilised system. Efficacy of such a device can hardly admit of any doubt. But how it should be initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power. … Therefore, the validity or otherwise of a no-confidence motion for removal of a President, would have to be examined on applicability of statutory provision and not on political philosophy. … The recall of an elected representative therefore, so long it is in accordance with law cannot be assailed on abstract notions of democracy.” The above mentioned principles were considered and applied in Partap Chandra Mehta vs. State Bar Council of Madhya Pradesh & others [(2011) 9 SCC 573] whilst determining whether Rule 122A of the Bar Council Rules of a State conferring the right of a no confidence motion on the members of the State Bar Council against their Chairman and Vice Chairman was ultra vires the parent law, the Advocates Act, 1961. The Indian Supreme Court rejected the challenge to the vires of the impugned rules. It held that so long as there was a legal provision controlling the motion of no confidence which avoided its arbitrariness or unreasonableness, such rule was intra vires the power of the State Bar Council to frame rules ‘to carry out the purpose of the Act’ (Advocate Act, 1961). The conclusion drawn has relevance to the facts of the instant case and is reproduced below: “80. In face of the above enunciated principles, we are of the considered view that the concept of just cause and right of hearing, the features of common law, are not applicable to the elected offices where a person is so elected by majority in accordance with statutory rules. It would also have hardly any application to moving of a “no confidence motion” insofar as these are controlled by specific provisions and are not arbitrary or unreasonable. There is nothing in Rule 122A of the M.P. Rules that requires adherence to these two concepts when a motion of CIVIL PETITION NO. 3345 OF 2016 36 no confidence is moved against a sitting Chairman/Vice- Chairman. Of course, it does not imply that the action can be arbitrary or capricious and absolutely contrary to the spirit of the Rule. There is no dispute in the facts of the present case that majority of the members had passed the “no confidence motion” in the 16th Meeting of the State Bar Council on 16-04-2011. 81. We are not able to accept the view taken by the High Court of Delhi in Bar Council of Delhi [Bar Council of Delhi v. Bar Council of India, AIR 1975 Del 200] in saying that solely with the aid of the General Clauses Act, the power to elect would deem to include power to remove by a motion of no-confidence, particularly, with reference to the facts and circumstances of the instant case. The power to requisition a “no-confidence motion” and pass the same, in terms of Rule 122-A of the M.P. Rules, is clear from the bare reading of the Rule, as relatable to loss of faith and confidence by the elected body in the elected office- bearer. We have already discussed in some detail and concluded that Rule 122-A of the M.P. Rules is not ulta vires the provisions of the Advocates Act, including Section 15. …” 28. Two established and admitted facts may be reiterated. Firstly, that the Rules framed in exercise of power delegated by Section 55 of the Act do not make provision for the Council to impeach or pass a vote of no confidence against the Chairmen or members of the Committees. Secondly, in the present facts of the case Rule 100 envisages in mandatory words that the term of office of members of the Committees shall run co- terminously with the term of the Council. This is because notwithstanding its one time power to fix a shorter term of the Committees at the time of constituting these, the Council did not do so, and thereby confirmed the full term of five years for such Committees. Consequently, it is a legal right of the Chairmen and members of the Committees that the tenure of their offices equals the full term of the Council. The excerpts of law reproduced above clarify that this right of elected officer bearers cannot be defeated by the majority in the Council without express authority under CIVIL PETITION NO. 3345 OF 2016 37 the Rules. Therefore, resort to the suspension of Rule 100 or electing new Committee members or relying on democratic notions is inconsequential. Although the no confidence of the majority of the Council in the Chairmen and members of the Committees is duly expressed yet their vote and its result lacks the sanction and authority of law. It is, therefore, ineffective and invalid. The element of rule of law necessary for democratic governance and noticed in Muhammad Nawaz Sharif’s case (PLD 2009 SC 644) requires that suitable amendment be made in the Rules to incorporate the right of the members of the Council to bring a motion of no confidence or of impeachment as may be deemed appropriate against, inter alia, members and Chairmen of the Committees. 29. The above discussion refutes the argument of the learned counsel for the respondents that the Council has a residuary power under Section 21 of the General Clauses Act, 1897 to lawfully remove Committee Chairmen and members. It may be added that the said statute in general and in particular Section 21 thereof relate to the exercise of delegated authority by statutory functionaries. The settled law of the land denies any authority to statutory functionaries to take away accrued legal rights of affected persons. Reference is made to Alsamrez Enterprise vs. Federation of Pakistan (1986 SCMR 1917), Zaman Cement Company (Pvt.) Ltd. vs. Central Board of Revenue (2002 SCMR 312) and Collector of Central Excise & Land Customs vs. Azizuddin Industries Ltd. (PLD 1970 SC 439). The term of offices of Chairmen and members of the Committees of the Council are their accrued legal right under Rule 100 which cannot be divested by invoking the power under Section 21 ibid. CIVIL PETITION NO. 3345 OF 2016 38 Equally other powers conferred by the General Clauses Act, 1897 are inapplicable. 30. Having expressed the foregoing view, there remains a poignant question for consideration by the Court. It is undisputed that the Council is constituted by Statute and all its proceedings and actions are regulated and governed by democratic norms that are laid down in the Act and the Rules. It is also a matter of fact that the Council performs the bulk of its functions through the elected Committees which are governed by the same norms. Given that the procedure of review, reversal and disposal by the Council of matters pending before the Committees (Rule 86A) is cumbersome and impracticable, there exists a serious lacuna in the regulation of the affairs of the Council. By the absence of a mechanism for impeachment or a vote of no confidence or recall otherwise in the Act or the Rules, the accountability of the Chairmen and members of Committees by the majority in the Council stands totally blocked. To our minds, the elements of transparency in actions, the confidence of and accountability before the electorate are crucial for the functioning and development of democratic governance in any institution. This is more so the case with the Council which is created by statute and is the highest representative professional body of the legal community in the country which plays a pivotal role in the dispensation of justice by the Courts of law. 31. In the foregoing perspective, the state of the present regulatory framework of the Council is in conflict with its underlying basis and ethos as envisaged by the Act and the Rules. In order to implement such underlying basis and ethos and to secure the rights of the members of the Council pursuant thereto, it is necessary that the Council CIVIL PETITION NO. 3345 OF 2016 39 must in exercise of its power under Section 55 of the Act incorporate an appropriate mechanism within its Rules setting out the conditions on which the terms of the Chairmen and members of the Committees may be terminated by the members of the Council. An amendment in the Rules is therefore necessary for carrying out the scheme of the Act and for enforcing better democratic governance of the Council as contemplated by the Act and the Rules. The substantive terms of the amended rules are left to the able and experienced hands of the members of the Pakistan Bar Council who are all Advocates of this Court. 32. However, in this regard, the Court is inclined to offer in the meantime certain guidelines for promoting confidence of the Council in its office bearers and for transparency and accountability in the discharge of their functions. There is precedent that guidelines were issued by the Court to advance the statutory scheme and objects of the Council in the case of Pakistan Bar Council vs. Federation of Pakistan (PLD 2007 SC 394); again to ensure transparency in functioning of public bodies guidelines were issued in Ghulam Rasool vs. Government of Pakistan (PLD 2015 SC 6). The fundamental basis of the Council requires that any contradictory lacuna in its framework be removed by express law. Accordingly, it is recommended that the requisite amendments be framed by the Council within a period of six months from the date of this judgment. 33. It is further remarked that in case the Council fails to frame the requisite amended Rule(s) within the given timeframe, then it is observed that as a default measure, the presently elected members of the Committees and the Disciplinary Tribunal of the Council shall be deemed CIVIL PETITION NO. 3345 OF 2016 40 to have a term of two years rather than five years. In other words, they shall upon the lapse of two years after their election to their offices be required to secure a fresh vote of confidence of the majority of the total members of the Council in order to retain their offices. At the said election of the Committees, the Council shall, if so inclined, have the opportunity to fix a shorter term of the Committees. The fresh elections for constituting the Committees and Disciplinary Tribunal of the Council shall accordingly be held in the month of January, 2018 on a date fixed by the Chairman of the Council. As a result, this petition is converted into an appeal and partly allowed in above terms with no order as to costs. Umar Ata Bandial, J. CIVIL PETITION NO. 3345 OF 2016 41 ORDER OF THE BENCH By majority of 2 to 1 (Umar Ata Bandial, J. dissenting), this Civil Petition is dismissed. Judge Judge Judge Announced in open Court on ___________ at ____________ Approved for Reporting Judge

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE FAISAL ARAB CIVIL PETITION NOs. 3364 TO 3366, 3517 TO 3519 & 3147-L TO 3149-L OF 2016 (On appeal against the judgment dated 28.04.2016 passed by the Lahore High Court, Lahore in PTR Nos. 69 to 71/2014, 364 to 366/2013, 477 to 482/2015) Sr. No Parties’ names Case No. 1. Husnain Cotex Limited through its Chief Executive Vs. Commissioner Inland Revenue, Lahore CP Nos. 3364 to 3366 of 2016 2. M/s Ghulam Rasool and Co. Pvt Ltd. Vs. Commissioner Inland Revenue, Lahore CP Nos. 3517 to 3519 of 2016 3. M/s Sarwar & Company (Pvt) Ltd, Lahore Vs. The Appellate Tribunal Inland Revenue etc CP Nos. 3147-L to 3149-L of 2016 For the Petitioners: Mr. Muhammad Akram Sheikh, Sr. ASC Mr. Muhammad Iqbal Hashmi, ASC Mr. Ahmed Nawaz Ch, AOR (Absent) (In Civil Petition Nos. 3366 & 3517 to 3519/2016) Mr. Sajid Ijaz Hotiana, ASC Mr. Ahmed Nawaz Ch, AOR (Absent) (In Civil Petition No. 3364/2016) Mr. Muhammad Raheel Kamran, ASC Mr. Ahmed Nawaz Ch, AOR (Absent) (In Civil Petition No. 3365/2016) Rana Muhammad Afzal, ASC Mr. Imtiaz A. Shoukat, AOR (Absent) (In Civil Petition Nos. 3147-L to 3149-L/2016) For the Respondents: Nemo (In Civil Petition No. 3364/2016) Hafiz Ahsan Ahmed Khokhar, ASC Raja Abdul Ghafoor, AOR (In Civil Petition No. 3365, 3366, 3517 to 3519 & 3147-L to 3149-L/2016) Date of Hearing: 26.01.2017 CIVIL PETITION NOs. 3364 TO 3366, 3517 TO 3519 & 3147-L TO 3149-L OF 2016 2 JUDGMENT FAISAL ARAB, J.- In order to grant tax relief to the taxpayers of certain areas of the province of Khyber Pakhtunkhwa, FATA and PATA, whose business suffered on account of internal strife, the government in June, 2010 invoked the provisions of Section 53 of the Income Tax Ordinance, 2001 (hereinafter referred as the Ordinance) under which exemptions or concessions are granted on such incomes or to such persons that are listed in the Second Schedule to the Ordinance. Consequently, Clause 126F was inserted in Part I of the Second Schedule which reads “Profits and gains derived by a taxpayer located in the most affected and moderately affected areas of Khyber Pakhtunkhwa, FATA and PATA for a period of three years starting from the tax year 2010”. Thus by virtue of Clause 126F, all profits and gains derived by the taxpayers located in the affected areas stood exempt from income tax for a period of three years. 2. One of the petitioners is a private limited company whereas the remaining two are public limited companies, not listed on the Stock Exchange. They have their business establishments either in Lahore or Multan. As they derive income from executing construction contracts, their business activity, by virtue of Section 153(1) (c) and 153(3) read with Section 169(b) of the Ordinance falls within the domain of ‘final tax regime’. Hence the amount deducted at the rate specified in the First Schedule of the Ordinance from the payments made to them towards fulfillment of their contractual obligations are to be treated as their final tax CIVIL PETITION NOs. 3364 TO 3366, 3517 TO 3519 & 3147-L TO 3149-L OF 2016 3 liability. Accordingly, the petitioners submitted their income tax statements under Section 115 of the Ordinance for each of the tax years 2010, 2011 & 2012 disclosing the deductions made from the payments received against their respective contracts performed in the affected areas. Later it occurred to the petitioners that they were entitled to claim exemption on such payments in terms of Clause 126F, so they applied to the Commissioner for refund of the amounts deducted towards their income tax liability. They initially succeeded in obtaining refund, however, the Additional Commissioner, Inland Revenue issued show cause notices to the petitioners under Section 122(5A) of the Ordinance, proposing to disallow the exemption that was allowed earlier by the Commissioner. After hearing the matter, the Additional Commissioner held that as the petitioners fall within the domain of ‘final tax regime’ and not under ‘normal tax regime’, the exemption granted under Clause 126F was not intended for them. This decision was challenged in appeal before the Commissioner Inland Revenue (Appeals-II), Lahore. After his decision in appeal, the aggrieved party assailed the appellate orders before the Appellate Tribunal, Inland Revenue, which held that the petitioners were entitled for exemption. The tax department then filed References before the Lahore High Court which vide impugned judgments reversed the findings of the Tribunal after holding that the petitioners fall within the domain of ‘final tax regime’ whereas the term ‘profits and gains’ occurring in Clause 126F was relatable to such taxpayers only who fall within the domain of ‘normal tax regime’, hence not entitled to claim exemption. Feeling aggrieved CIVIL PETITION NOs. 3364 TO 3366, 3517 TO 3519 & 3147-L TO 3149-L OF 2016 4 by such decision the petitioners have preferred these petitions for leave to appeal. 3. Mr. Muhammad Akram Sheikh, learned counsel for the petitioners in CPLA Nos. 3366 & 3517 to 3519 of 2016 submitted that the provisions of Section 153(1)(c) and Section 153(3) of the Ordinance are attracted to the case of the petitioners whereby they in each tax year are required to furnish a statement of their income to the Commissioner under Section 115 of the Ordinance and are not obliged to furnish return of income as provided in Section 114 of the Ordinance. He then submitted that irrespective of the fact that petitioners business concerns are located outside the affected areas, as they have executed construction contracts in the affected areas during the exempt years, they were entitled for exemption under Clause 126F. He submitted that accordingly the petitioners furnished a revised statement with the Commissioner under Section 115(4) of the Ordinance and sought refund of the tax deducted at source by the contract awarding entity by invoking Section 170 of the Ordinance. In support of his argument, the counsel for the petitioners referred to Circular No. 14 of 2011 dated 6th October, 2011 issued by Federal Board of Revenue. It interprets the scope of the word ‘located’ appearing in Clause 126F in order to describe as to which category of taxpayers could avail the benefit of exemption. The relevant portion of this Circular is reproduced below:- “Government of Pakistan Revenue Division Federal Board of Revenue Inland Revenue Wing ****** C.No.4(40ITP/2009.PT-I-142122-R Islamabad, 6th October, 2011 CIVIL PETITION NOs. 3364 TO 3366, 3517 TO 3519 & 3147-L TO 3149-L OF 2016 5 Circular No. 14 of 2011 (Income Tax) Subject: Exemption under Clause (126F) of Part I of Second Schedule to the Income Tax Ordinance, 2001 – Clarifications Regarding Clause (126F) was inserted in Part I of Second Schedule to the Income Tax Ordinance, 2001, through Finance Act, 2010, to grant fiscal relief to the taxpayers whose businesses were adversely affected during the on- going strife in the Khyber Pakhtunkhwa (KPK), Federally Administered Tribal Areas (FATA), and the Provincially Administered Tribal Areas (PATA), for a period of three years w.e.f. Tax Year 2010. In follow up thereto, a number of communications were issued by the Board to define and clarify the parameters of Clause (126F) including SROs, Circulars, and letters, which being prone to varying interpretations, may have caused certain degree of confusion in some respects. 2. Queries have been received in the Board as regards the availability of exemption under Clause (126F) with reference to the location of the taxpayer, the location of the business, and other allied matters. In supersession of all earlier clarifications issued by the Board, in order to streamline the operation of Clause (126F), and ensure its standardized implementation across the board, the instructions as contained in the succeeding paragraphs will henceforth apply. 3. The word “located” as used in Clause (126F) can possibly have more than one dimension. The relevant scenario along with the corresponding exemption/taxable status are outlined below:- Sr# Situation Exemption/Taxability (i) The taxpayer is located inside the affected and moderately affected areas (hereinafter ‘the specified areas’), and his business is also carried on inside the specified areas. Exempt (ii) The taxpayer is located outside the specified areas but his business is carried on within the specified areas. Exempt (iii) The taxpayer is located inside the specified areas, but his business is carried on outside the specified areas. Taxable (iv) The taxpayer is located outside the specified areas, but his business is partly carried on inside the specified areas. Exempt to the extent of the income attributable to the business operations carried on inside the specified areas. 4. Thus, it is apparent that the provisions of Clause (126F) have to be applied keeping in view the facts of each case. 5. Accordingly, the field formation may decide each case on merit in the light of the above instructions upon filing of a claim in this regard by the taxpayer. -sd- (Shahid Mehmood Sheikh) Secretary-IR (Exemptions/Rules)” CIVIL PETITION NOs. 3364 TO 3366, 3517 TO 3519 & 3147-L TO 3149-L OF 2016 6 4. In support of his contention, Mr. Muhammad Akram Sheikh also relied upon the judgments reported in the cases of Commissioner of Income Tax Peshawar Vs. Islamic Investment Bank (2016 SCMR 816), Elahi Cotton Mills Ltd. Vs. Federation of Pakistan (PLD 1997 Supreme Court 582), Commissioner of Income Tax Legal Division Vs. Khurshid Ahmad (PLD 2016 Supreme Court 545) and Army Welfare Sugar Mills Ltd. Vs. Federation of Pakistan etc (NLR 1992 Tax 186). The other counsel representing the rest of the petitioners in CPLA Nos. 3364, 3365 and 3147-L to 3149-L of 2016, adopted the same line of arguments that were advanced by Mr. Muhammad Akram Sheikh. 5. Learned counsel for the respondents defended the reasoning given in the impugned judgment by arguing that the concession granted under Clause 126F was only intended for the taxpayers of ‘normal tax regime’ who were located in affected areas whereas businesses of all the petitioners are located in Punjab and fall within the domain of ‘final tax regime’, therefore, the benefit of exemption was rightly denied to them. He further submitted that the Circular No.14 of 2011 interpreting the scope of exemption, upon which much reliance was placed by the counsel for the petitioners, was subsequently recalled on 06.10.2011 as it did not depict the true interpretation of Clause 126F. 6. Before examining the applicability of exemption granted under Clause 126F to the case of the petitioners, two types of taxpayers are to be kept in mind. One who fall within the domain of ‘normal tax regime’, whose net profit in a tax year is CIVIL PETITION NOs. 3364 TO 3366, 3517 TO 3519 & 3147-L TO 3149-L OF 2016 7 determined by matching costs with the income, after taking into consideration various other factors such as allowances, deductions, depreciations, rebates, amortization etc. The applicable rate of income tax is then applied to the net profit thus arrived at to determine the tax liability of the tax year. The other type of taxpayers are of the petitioners’ kind who fall within the domain of ‘final tax regime’ by virtue of Section 153(1)(c) and 153(3) read with Section 169(b) of the Ordinance. Their income tax liability in a tax year is a certain percentage deducted from the payments which are made to them by the contract awarding entity towards the performance of the contract at a rate specified in the First Schedule to the Ordinance. The income tax that is thus deducted at source fully discharges the contractor from his income tax liability irrespective of what profits and gains he has actually made as the same are of no consideration for the purposes of determining his tax liability. 7. A person who was carrying on business in the affected areas but was unable to sell his goods or services to the extent he used to in normal business environment is the person who can only be described as an affectee of the adverse business environment. It was thus the adverse business environment which directly impacted his business with the result that his profits and gains diminished. The whole stimulus behind the tax exemption granted in 2010 under Clause 126F on the face of it was that sometime in the past the businesses located in the affected areas could not make profits on account of adverse business environment that was being experienced there. So it was purely an external factor that diminished the capacity of the businesses to CIVIL PETITION NOs. 3364 TO 3366, 3517 TO 3519 & 3147-L TO 3149-L OF 2016 8 make profits and gains that was germane in granting tax exemption under Clause 126F. Hence exemption in question was intended for such taxpayers only. These taxpayers could only be the ones who fall under the ‘normal tax regime’. As to the taxpayers who fall under the ‘final tax regime’, they face no such situation. Firstly, they are not located in the affected areas. They only went to the affected areas when they succeeded in securing contracts, which in itself created business opportunity for them, adverse business environment notwithstanding. Their business activity starts only when they secure contracts. It can very well be imagined that before he submits his bid, he estimates the component of all costs that he is to incur towards the fulfillment of his contractual obligation. To cost he adds his margin of profit. He then adds the income tax liability at the rate specified in the First Schedule to the Ordinance. Where the contract is awarded to be performed in the areas affected by adverse business environment, the same has no impact on contractor’s margin of profit which he has already incorporated in the contract price. The contractor is thus not affected by any external factor that is not conducive for doing good business. So the business environment of the area where contract is to be performed doesn’t have any correlation with contractor’s profit and gains. They, therefore, cannot equate themselves with those taxpayers falling under the domain of ‘normal tax regime’ whose businesses being located in affected areas suffered financially on account of adverse business environment. While determining the scope of exemption granted under Clause 126F, one should not lose sight of the fact that the precise reason for granting tax relief under Clause 126F was to CIVIL PETITION NOs. 3364 TO 3366, 3517 TO 3519 & 3147-L TO 3149-L OF 2016 9 ameliorate the financial conditions of certain taxpayers who were real affectees of business environment that had affected their capacity to make profits and gains from their businesses. To extend the benefit of this exemption to the other category of taxpayers who did not even exist in the affected areas before succeeding in obtaining contracts to be performed there could never have been envisioned by the Legislature while incorporating Clause 126F in the Ordinance. We are, therefore, of the considered opinion that in view of the distinction between the two categories of taxpayers discussed above, the taxpayers such as the petitioners who fall under the domain of ‘final tax regime’ cannot claim exemption under Clause 126F. The case law relied upon by petitioners’ counsel, therefore, has no application to the case in hand. 8. As to the legal effect of the Circular No. 14 of 2011, suffice is to state that it was issued with the intention to interpret Clause 126F in a manner so that the benefit of exemption is extended even to such taxpayers also who were located outside the affected areas but they partly did business in the affected areas. In our view this explanatory Circular does not depict the correct interpretation of the scope of Clause 126F as it traveled into altogether a different direction from what we have discussed hereinabove. It appears that ultimately better sense prevailed with the Federal Board of Revenue as we were informed by learned counsel for the department that Circular No. 14 of 2011 was subsequently withdrawn vide letter dated 07.06.2013. CIVIL PETITION NOs. 3364 TO 3366, 3517 TO 3519 & 3147-L TO 3149-L OF 2016 10 9. In addition to what has been discussed above, it may also be mentioned here that in terms of clause (e) of Sub-Section (2) of Section 169, no refund of the tax deducted from the payments made to the taxpayers falling under ‘final tax regime’ can be claimed if the same have been deducted at the rate chargeable under the provisions of the Ordinance. Therefore, the petitioners being taxpayers who fall within the domain of ‘final tax regime’ could not have claimed refund of the deducted tax even otherwise as it is not their case that the deductions were made at the rate higher than the rate specified in the Second Schedule of the Ordinance. 10. We, therefore, conclude that the tax exemption granted in the year 2010 under Clause 126F from its tenor could only have been intended for the taxpayers falling under the domain of ‘normal tax regime’ whose profitability while doing business in the affected areas had diminished in the past on account of an external factor i.e. political strife that affected the profitability of doing business there. The exemption was never meant for the taxpayers like the petitioners whose businesses fall within the domain of ‘final tax regime’ for whom the question of experiencing loss of business opportunity on account of internal strife does not arise. They made their presence in the affected area only when they had in their hands a business opportunity to make profits and gains in the form of contracts to be executed there. The income tax department shall accordingly proceed to recover the income tax that has been wrongly refunded to any of the petitioners. CIVIL PETITION NOs. 3364 TO 3366, 3517 TO 3519 & 3147-L TO 3149-L OF 2016 11 11. We vide short order dated 26.01.2017 dismissed these nine petitions and the above are the detailed reasons for the same. JUDGE JUDGE JUDGE Islamabad, the 26th of January, 2017 Approved For Reporting Khurram.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE QAZI MUHAMMAD AMIN AHMED (,4FI2) Civil Petition No.336712018 (Against the order dated 23.05.2018 passed by the Islamabad High Court, Islamabad in C.R. No.401/16) Mah Jabeen Ashfaq .Petitioner VERSUS Noor Mahi and others Respondents For the petitioner: Mr. Zaheer Bashir Ansari, ASC For the respondents: N.R. Date of hearing: 21.02.2022 JUDGMENT MAZHAR ALAM KHAN MIANKHEL, J-. The petitioner, being plaintiff No. 1A in the main suit, through instant petition under article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has questioned the impugned order dated 23rd April, 2018 of the learned Judge-in-Chambers of the Islamabad High Court, Islamabad whereby the civil revision, filed by the petitioner and respondent No.4 ('Proforma Respondent'), was dismissed by upholding the concurrent I findings of dismissal of their suit for specific performance. 2. We have heard the learned counsel for the petitioner and have gone through the available record. -4 C.P.3367/1 S PA The record of the case would reveal that initially the proforma respondent filed a suit for specific performance of an agreement to sell dated 19th June, 1997 and subsequently, the present petitioner was also impleaded as plaintiff No. 1A being an alleged purchaser of the suit plot from proforma respondent. The claim of the proforma respondent was categorically denied by respondent No.1 being the allottee of the suit plot by respondent No.3. The respondent No.1 further alleged that he had sold away the plot in favour of respondent No.2 (Abdul Ghaffar Khan). The said transfer was accordingly incorporated in the name of Respondent No. 2 in the record of respondent No.3. It is not out of place to mention here that the suit of the proforma respondent was filed after the transfer of the suit plot in the name of respondent No.2. After recording pro and contra evidence, the suit of the plaintiff was dismissed by the trial Court vide judgment and decree dated 24.11.2010 by holding that the agreement of sale by Respondent No. 1 with the plaintiff/proforma respondent was proved and established on the record and the payment of sale consideration by proforma respondent to respondenf No. 1 was also proved, so, burdened the respondent No.1 to pay the double amount of sale consideration to proforma respondent for the reason that the suit plot was sold to respondent No.2, prior to the institution of suit. Both the plaintiffs (petitioner and the proforma respondent) and respondent No.1 filed two separate appeals. The plaintiffs were aggrieved from dismissal of their suit despite the fact that agreement of sale and payment of sale consideration was held to be proved whereas the C.P,3367/18 3 respondent No.1 was aggrieved of fixation of amount of Rs.1,000,000/- (the double amount of actual sale consideration allegedly received by respondent No. 1). 3. The perusal of the judgment and decree dated 11.6.2016 of the Appellate Court would reflect that the learned Judge without application of his judicial and independent mind dismissed both the appeals in a cursory manner, specially the appeal of respondent No.1 as the payment of sale consideration was not proved by proforma respondent in accordance with the law and despite this important fact burdened the respondent No.1 to pay back the double amount of the sale consideration to porforma respondent. 4. Both the plaintiffs filed civil revision before the Islamabad High Court by questioning the dismissal of their suit for specific performance whereas the respondent No.1 did not question the findings of the Appellate Court though the same were against the facts and the record of the case. Perusal of the impugned judgment would reflect that the learned Judge-in-Chambers of the High Court has fully scanned the entire material and the evidence on the record in presence of both the plaintiffs (plaintiff 1A and proforma respondent) and has very rightly observed and held that the proforma respondent has failed to prove the execution of sale agreement with respondent No.1 and has also failed to prove the payment of sale consideration to respondent No.1 and the suit of proforma respondent was also held to be hopelessly time barred. The learned Judge has dismissed the suit for pecific performance in toto. When the suit is held to fail for C.P.3367/18 4 want of proof and also being barred by time then burdening the respondent No.1 with payment, double the sale consideration actually paid, stands automatically set aside. Though such observations and findings are missing specifically in the judgment impugned herein but it is manifest that when the suit is dismissed in toto, the penalty of double payment also get buried with the suit. Such findings of the High Court, visibly against the proforma respondent, have not been challenged by him which means that the same have attained finality between the parties. So, the proforma respondent, after the findings of the High Court, cannot claim the payment of double sale consideration from respondent No. 1. If already received, he is bound to repay the same to respondent No. 1. We, in the peculiar circumstances of the case can clarify the judgment impugned before us just to do complete justice between the parties within the contemplation of Article 187 of the Constitution. 5. The status, as apparent from the record, of the present petitioner is the subsequent purchaser of the suit plot from proforma respondent and the success of the petitioner is dependent on the success of proforma respondent. Evidence on the record, led by the proforma respondent, reflects that he bitterly failed to prove the proper execution of the agreement and payment of sale consideration and this very fact has also been admitted by him in his cross- examination. The trial Court and the Appellate was absolutely wrong in their perception by holding that the agreement of sale and payment of sale consideration has been proved by the proforma respondent. Besides the above, the proforma 0 C.P.3367fl8 5 respondent filed his suit on 1st September, 2006 against an alleged sale agreement dated 19.6. l997 after more than nine years which was hopelessly barred by time and he failed to give any plausible reason for this delay in filing his suit. The Courts below, the trial Court and the Appellate Court failed to give any finding on issue No.5 regarding limitation and dealt with this issue in a cursory manner. The record further reflects that the suit plot was lawfully transferred in the name of respondent No.2 and the same was accordingly incorporated in his name in the record of respondent No.3. The present petitioner, falling in the steps of proforma respondent, cannot question the allotment or its sale to respondent No.2 and she, as such, has no cause of action and locus staridi in this regard. Hence, this petition being meritless is dismissed as such and leave refused. 1sIaznabad 21st February, 2022 Nasir Khari I. approved for reporting'

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Sayyed Mazahar Ali Akbar Naqvi Civil Petition No.3380-L of 2017 (Against the judgment dated 09.10.2017 of the Lahore High Court, Lahore passed in RSA No.62/2016) M/s James Construction Company (Pvt.) Ltd., Lahore …Petitioner(s) Versus Province of Punjab through Secretary Communication & Works, Government of Punjab, Lahore etc. …Respondent(s) For the Petitioner(s): Mr. Zahoor Nasir Tagga, ASC For the Respondent(s): Ms. Aaliya Ejaz, Asstt.A.G. Date of Hearing: 01.01.2021 … ORDER Umar Ata Bandial, J.- The learned High Court in its impugned judgment dated 09.10.2017 has held that the petitioner’s suit for recovery of Rs.945,475/- against the Provincial Government and the concerned Highways Authorities of the Provincial Government in Faisalabad was not maintainable before the learned Civil Court at Lahore on account of lack of territorial jurisdiction. In this respect reliance has not been placed on any case law but merely on the provisions of Section 20 of the CPC. That provision lays down the following:- “20. Other suits to be instituted where defendants reside or cause of action arises.---Subject to the limitations aforesaid, C.P.No.3380-L/2017 - 2 - every suit shall be instituted in a Court within the local limits of whose jurisdiction-- (a) the defendant, or each of the defendants where there was more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation I.---Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. Explanation II.---A corporation shall be deemed to carry on business at its sole or principal office in Pakistan or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.” 2. In the present case the contract was executed in Faisalabad but it was approved by the Provincial Government at Lahore vide memorandum dated 03.02.1991 issued by the Chief Engineer (South), Punjab Highway Department, Lahore addressed to the Superintending Engineer, Highway Circle, Faisalabad. This document was not considered by either the learned High Court in its judgment dated 09.10.2017 or the learned Appellate Court in its judgment dated 24.11.2015 to arrive at the conclusion C.P.No.3380-L/2017 - 3 - regarding the lack of jurisdiction of the Civil Courts at Lahore to adjudicate the claim raised by the petitioner. 2. Learned counsel for the petitioner has placed before us a judgment of this Court reported as Faqir Muhammad Vs. Pakistan through Secretary, Ministry of Interior and Kashmir Affairs Division, Islamabad (2000 SCMR 1312) wherein it was observed:- “4: This is not denied that tender was accepted at Rawalpindi and it being so clause (c) of section 20, C.P.C. was attracted, which speaks about cause of action wholly or in part. It is immaterial that about acceptance of tender letter to the appellant was issued from Gilgit. The facts remains that it was accepted at Rawalpindi. Thus, cause of action in part had accrued at Rawalpindi.” 3. Learned Assistant Advocate General, on the other hand, has placed reliance on the following passage from Justice Kaikaus’s concurring note in Pakistan Vs. Waliullah Sufyani (PLD 1965 SC 310):- “Page 345: A suit against a person can only be brought under the C.P.C. at a place where the cause of action arose or where the defendant resides or carries on business or personally works for gain. A suit would not lie in the Indian Courts because the cause of action arose at a place which is not in India and a Government neither resides anywhere nor carries on business nor works for gain.” 4. The proposition dealt with by the aforesaid judgment was regarding the specific residence of the Government. In the present case, the provisions of Section 20 of the CPC have been invoked with respect to the place of accrual of the cause of action C.P.No.3380-L/2017 - 4 - wholly or in part. Be that as it may, even in relation to the rule enunciated in the afore-noted judgment, this Court has restricted the said proposition in a recent decision reported as Province of Punjab through Secretary to Government of Punjab, Communication and Works Department, Lahore and another Vs. Messrs Muhammad Tufail and Company (PLD 2017 SC 53). The relevant portion is produced below:- “22: The commercial activities undertaken by a government are not included in the "ordinary connotation" of the word "Government”. Indeed we are not persuaded by the reasoning of the learned High Court in Fazal Muhammad's case (supra) to the effect that commercial activities are undertaken by Government for welfare purposes and for that reason they are to be treated as part of its functions. The commercial activities do not form a part of the core functions of a government which remain its executive, judicial, legislative and administrative functions. When a government enters into the domain of business and commerce it cannot be given a premium of its position and must be treated at par with its competitors or near competitors in the private sector. It must be subject to the laws of the land. Its commercial activities must be regulated in the same manner as those of the private sector. It cannot be exempted therefrom simply by the dint of being a "government". Hence when a government is engaged in the 'business' of road building through the vehicle of construction contracts with a private contractor then it cannot be allowed to claim privileges on account of being the government. In these circumstances it would be liable to be treated as a corporation in terms of Explanation II to Section 20, C.P.C. In the case of Bakhtawar Singh (supra) the Supreme Court of India upheld the decision of the Delhi High Court dismissing an the application of a contractor under Sections 14 and 17 of the Indian Arbitration Act by holding that the phrase 'actually and voluntarily' resides, 'carried on business' or 'personally works for gain' do not apply to legal entities like the Union of India and only C.P.No.3380-L/2017 - 5 - to natural persons. But this inapplicability is only in reference to the sovereign functions of the State (as the contract pertained to maintaining armed forces therefore it was considered to be a sovereign activity of the State). When the State carries on commercial activities then Section 20, C.P.C. would apply, as held in Ladulal Jain's case (supra). We find ourselves in agreement with this subtle but important distinction. The Government in the exercise of its core functions viz, its executive, legislative, judicial and quasi-judicial, and administrative roles exercises sovereign powers. But when it engages in commercial activities it is not exercising sovereign power, rather it is engaging in business/commercial activities and merits no undue advantage over ordinary litigants: it is subject to Section 20, C.P.C. in its entirety. (emphasis supplied) 5. In the above quoted case, this Court, after examining in detail the case-law of Pakistan and India, reached the conclusion that by engaging in activities which did not form part of its sovereign functions i.e. which could be performed by private entities if the Government was not in charge of them, the Government was in effect carrying on a business. Consequently, it was held that in such situations the Government would be subject to Section 20 of the CPC in its entirety. We agree. Therefore, in our considered opinion, keeping in view the nature of the activity in which the Government was involved in, namely, the construction of roads, the specific issue raised in these proceedings is governed by Section 20 of the CPC in toto. Accordingly, the learned Civil Court at Lahore did have the territorial jurisdiction to entertain the suit filed by the petitioner (both in terms of clause (a) and clause (c) of Section 20 of the CPC). Learned counsel for both the parties agree that insofar as the merits of the case are concerned, the same C.P.No.3380-L/2017 - 6 - stand adjudicated by the judgment of the learned Trial Court and on that issue no contest was made by the Provincial Government before the learned Appellate Court as recorded in paragraph No.7 of its judgment dated 24.11.2015. 6. In the light of the foregoing discussion, the impugned judgments dated 09.10.2017 and 24.11.2015 are set aside. As a result, this petition is converted into an appeal and allowed. Judge Judge Lahore, the 1st of January, 2021 approved for reporting Waqas Naseer/Meher LC

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE FAISAL ARAB MR. JUSTICE MUNIB AKHTAR CIVIL PETITION NO. 339-K OF 2017 (On appeal against the judgment dated 19.05.2017 passed by the High Court of Sindh, Hyderabad in R.A. No. 44/2015) Muhammad Rahim … Petitioner VERSUS Mohsin and another … Respondents For the Petitioner: Mr. Noor Ahmed Memon, ASC Mr. Abdul Saeed Kahn Ghori, AOR For the Respondent (s): Barrister Shabbir Shah, Addl. A.G. Sindh Mr. Kazi Hameed Siddiqui, ASC Mr. Ghulam Rasool Mangi, AOR Date of Hearing: 20.12.2018 JUDGEMENT Faisal Arab, J:- Dispute in the present proceedings pertains to ownership of half portion of a plot bearing No. 479 measuring 1650 square feet situated in Deh Badin, district Badin. The said plot, which was previously evacuee property, was sold at auction held on 25.02.1967 jointly to Ali Buksh and Abdullah Memon both of whom held equal share. Sale was confirmed on 17.05.1967 and PTD No.19061 was issued on 31.12.1968. Upon payment of auction money, a mutation entry No. 69 was kept in their names in the revenue record. The respondents namely Mohsin Ali and his sister Mst. Zuhra are the heirs of one of the co- owners Ali Buksh. They initiated suits for possession of their shares in the plot in question when Mohsin Ali who lived abroad CIVIL PETITION NO. 339-K OF 2017 2 from 1973 to 2009 upon his return found that the heirs of the other co-owner Abdullah had occupied the portion on the front of the plot and the plot was in unauthorized occupation of the present petitioner. Suit No.8 of 2010 was filed against the heirs of Abdullah who during the course of the proceedings accepted the claim of the respondents and agreed to give a road facing portion of 440 square feet to the respondents. In this regard, a compromise decree was passed in the suit on 03.04.2010. Another suit bearing No.15 of 2010 for declaration, possession, mesne profits and permanent injunction was filed against the petitioner who denied the respondents’ claim that he is in unlawful occupation of any part of their plot and claimed ownership of his own on the strength of a sale deed executed by Gul Muhammad and Noor Muhammad. The respondents’ suit was dismissed after which an appeal was field which was also dismissed on 17.12.2014. The respondents then filed civil revision application in the High Court which was decided on 05.05.2017 in their favour holding the petitioner to be in unlawful occupation of respondents’ plot. Hence this petition. 2. Learned counsel of the petitioner argued that the plot in question was sold to the petitioner vide registered sale deed dated 13.11.1994 by Gul Muhammad and Noor Muhammad who were at that time the owners and denied that the father of the respondents owned any share in the said plot; that the respondents have not mentioned in their plaint the Deh in which the suit plot is situated but referred to entry No. 121/A, which is recorded in revenue record of Deh Pattar, district Badin; that the chain of documents produced by them show location of CIVIL PETITION NO. 339-K OF 2017 3 respondents’ plot in Deh Pattar as well as Deh Badin which creates doubt in the title of the respondents. Learned counsel for respondents on the other hand defended the impugned judgement. 3. The main point in issue is as to in which Deh the disputed property lies. According to entry No. 461 dated 16.05.2009 of VF-II produced by the respondents at trial it is stated that the plot in question is situated in Deh Badin, which was wrongly recorded in Deh Pattar however the petitioner denies this and maintains that their plot is in Deh Pattar. Upon perusal of documents and the report filed by the Mukhtiyarkar Badin, it becomes clear that the ‘’foti khata’ of deceased Ali Buksh’s 50% share measuring 825 square feet in the disputed plot was transferred in favour of the respondents vide entry 461 and a note has also been recorded that the plot is located in Deh Badin which mistakenly stands entered in the records of Deh Pattar. The order No. AC/27/2015 dated 20.01.2015 of then Assistant Commissioner Badin also clarifies that the location of the plot is in Deh Badin. 4. It is important to mention that even though the petitioner claims to have purchased the plot in question from Gul Muhammad, he was unable to satisfy the High Court as to how Gul Muhammad acquired title in the disputed plot. The learned High Courts while examining this issue held as below: “When the learned counsel for the respondent was posed with the question to satisfy this court as to how did the seller of the property namely Gul Muhammad got his title? He had no answer. In this regard however reference could CIVIL PETITION NO. 339-K OF 2017 4 be made to the EX.No.61, where the respondent admits that he is the bona fide purchaser of the suit land from the ‘original owners’ however he even did not provide their names which he mentioned only in the cross to be Gul Muhammad and Noor Muhammad. While in the same cross he denied that the allotment of Gul Muhammad and Noor Muhammad was cancelled vide Commissioner Hyderabad orders which were upheld by the Member Board of Revenue in case No SPOR 723 of 1982-83 dated 28.11.1984. However despite the presence of these impressive documents the courts below utterly looked on the other side by ignoring these compelling pieces of evidence, it was also alleged that even the said Noor Muhammad preferred an appeal against Abdullah which was dismissed. …. It is also noted that both the judgements while mentioning the sale deed in terms of which the respondent became owner of a part of the plot in question, however, are completely silent as to from where did Gul Muhammad acquired his title as no proof is produced thereof at all in the two judgements in question” 5. As per the case of the petitioner an area of 919 square feet plot out of Bhadda land of Deh Pattar was transferred by Gul Muhammad in his name on the basis of registered sale deed No. 737 dated 13.11.1994 and mutation was affected in the revenue record vide entry No. 14 dated 10.12.1994 but plot number or survey number is not mentioned and the description in the sale deed also does not match with the plot in question. In any case, the sale deed dated 13.11.1994 pertains to land located in Deh Pattar whereas the respondents’ plot No. 479 is found to be in Deh Badin. Both are adjoining Dehs. Hence, on the basis of documents available on record and the report submitted by Assistant Commissioner, Badin, it has become clear that the plot No. 479 is located in Deh Badin and its original owners were Ali Buksh and Abdullah Memon and the respondents as heirs of Ali Bakhsh became entitled to half share in the disputed plot which was unlawfully occupied by the petitioner on the basis of a document that pertains to land located in Deh Pattar and not Deh Badin. CIVIL PETITION NO. 339-K OF 2017 5 6. In light of the above we do not find any reason to interfere with the findings arrived at in the judgement of the High Court, this petition is therefore dismissed. JUDGE JUDGE JUDGE Announced on 08.05.2019 at Islamabad. Not Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE FAISAL ARAB MR. JUSTICE TARIQ PARVEZ CIVIL PETITION NO. 3451 OF 2015 (On appeal from the judgment and order of the Lahore High Court, Lahore, dated 22.09.2015 passed in W. P. No. 23025 of 2015) Chairman NAB through PGA NAB Islamabad Petitioner Versus Muhammad Khalid Respondent For the Petitioner: Mr. Nasir Mehmood Mughal, Special Prosecutor, NAB with Mr. Tariq Aziz, AOR Respondent: N. R. Date of Hearing: 11.01.2016 JUDGMENT TARIQ PARVEZ, J.- The petitioner, Chairman NAB seeks indulgence of this Court for setting aside order of the learned Division Bench of the Lahore High, Lahore dated 22.09.2015 passed in Writ Petition No. 23025 of 2015 whereby respondent Muhammad Khalid was allowed bail on furnishing bail bonds in the sum of Rs.200,000/- with two sureties in the like amount. 2. The reason as to why Muhammad Khalid approached the Hon’ble Lahore High Court was that a Reference by the NAB Authorities was filed against number of accused including the petitioner with the C. P. No. 3451 of 2015 2 allegations that a piece of land measuring 1787 kanals 14 marlas situated in Village Dhana Singhwala, Lahore, located along Canal Bank near Joher Town belongs to the Government of Pakistan and that one Abdul Rasheed Farooqi who had General Power of Attorney on behalf of the land owners entered into a compromise to sell such land to the National Industrial Cooperative Finance Corporation Limited (hereinafter referred to as “NICFC”) for a total consideration of Rs.64.14 million and the total price was paid to Zulifqar Hussain and others. Later a controversy and dispute regarding the share in profit on the sale of the said land developed and finally when the matter came up for adjudication before this Court and the deeds executed in favour of NICFC were cancelled holding that Zulifqar Hussain and others were not owners of the said land. However in Reference it is alleged that after cancellation of the sale deed by the Supreme Court all the accused in furtherance of their common intention had misappropriated an amount of Rs.77.71 million out of funds of NICFC. It is alleged that the price of the land should have been paid back and deposited in the fund of NICFC, one Shahid Mehmood who is son of Ch. Abdul Majeed requested NICFC that he being co sharer to the extent of 25% of land mentioned above, was not interested in the land and be paid a cash of Rs.12.09 million. The request was accepted by Ch. Tajammal Hussain and Ch. Abdul Majeed who paid the said amount to Shahid Mehmood but Shahid Mehmood deposited the amount in the Loan Account No.113 which was in the name of Muhammad Khalid (a cousin of Shahid Mehmood) and that it was adjusted to clear the loan liabilities which were outstanding against Muhammad Khalid as such he is one of the beneficiary of the frud and misappropriation being committed by him and his co accused against whom Reference was filed. C. P. No. 3451 of 2015 3 3. Some co accused of the respondent were sent up for trial before the learned Judge of the Accountability Court but on trial and vide judgment dated 16.03.2005 some of the accused were convicted and sentenced to different periods while some were already released on entering into plea bargain. Some of the convicts preferred appeal before the Lahore High Court and vide judgment dated 28.04.2015 were acquitted. 4. The learned counsel for the petitioner contends that respondent Muhammad Khalid being a close relative of Shahid Mehmood co accused had opened a loan account bearing No.113 which he has not disowned and an amount of Rs.12.09 which was deposited in the said loan account was adjusted towards loan taken by him from the financial companies, thus, he has become a beneficiary of the misappropriation money. He next submits that the respondent has been allowed bail mainly on the ground that since some of his co accused namely, Ch. Abdul Majeed and Shahid Mehmood had been acquitted he was extended the benefit of doubt by granting bail. His last submission that the respondent remained absconder for approximately 14 years which fact was though taken into consideration by the learned High Court but not considered as incriminating circumstance which would have made the respondent disentitled to the concession of bail. 5. We are cognizant of the fact that before us is a matter where the petitioner seeks leave of this Court but against an order granting bail to the respondent. 6. It has been ruled by this Court with a considered view that considerations for grant of bail and its cancellation are different. Once a Court of competent jurisdiction by exercising its powers which are discretionary in nature has issued a favourable order in respect of a person C. P. No. 3451 of 2015 4 accused in an offence, this Court is always slow to interfere unless it finds that the order granting bail was against the record, perverse or unreasonable. 7. In the present case not only that alleged main beneficiary have been acquitted by the learned Division Bench of the High Court vide judgment dated 28.04.2015 but the allegation against the present respondent that the amount was transferred in his account by Shahid Mehmood his cousin since has been acquitted the role of the respondent whether he is or was a beneficiary of the misappropriation requires recording of independent evidence. The mere fact that co-accused of the respondent have been acquitted may not be sufficient ground for granting him bail but it has created dent at present to the extent which has made the case of the respondent of further inquiry. The main and final argument of the learned counsel for the petitioner that the respondent remained absconder for about 14 years, suffice it to say that abscondance by itself cannot be a substitute of evidence. It is a circumstance which is always taken in a criminal case as corroboration towards the guilt and not as proof of the guilt. 8. Moreover, an accused under the NAB Ordinance if avoid being served with any process issued under the Ordinance or in any manner prevents, avoid or evades the service on himself of such process or conceals himself to screen himself from the proceedings creates an independent crime under Section 31-A of the National Accountability Ordinance, 1999. 9. We have searched for proceedings if any initiated against the accused/respondent in terms of Section 31-A which we failed to find out at the available record. C. P. No. 3451 of 2015 5 10. Be as it may the nutshell is that the bail has already been granted to the respondent by the High Court in exercise of constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 with careful exercise of discretion and this Court being slow in interfering in discretionary orders more so when they are interim in nature and not final and when the matter before us has come for cancellation of bail this Court is always very slow to recall the order of grant of bail. We find no good and strong reason in support of this petition and the same is dismissed. Leave declined. Judge Judge Judge Islamabad January 11, 2016 Shirazi/* “NOT APPROVED FOR REPORTING”

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN Civil Petitions No.3451 to 3464 of 2017 AND Civil Petitions No.3473 to 3651 of 2017 Against order dated 17.07.2017 of Federal Service Tribunal, Islamabad, passed in Miscellaneous Petitions No.2630 to 2715 of 2016, etc. Wapda through its Chairman & others Petitioners VERSUS Raja Iftikhar Ahmed & others Respondents For the Petitioner(s) : Mr. Umar Aslam Khan, ASC Ch. Akhtar Ali, AOR Ahmed Bakhsh Tarar, DG (Law), Wapda For the Respondent(s) : N.R. Date of Hearing : 15.12.2017 ORDER IJAZ UL AHSAN, J-. Through this single order, we propose to decide the titled Civil Petitions which raise common questions of law and facts. 2. The petitioners, who are functionaries of the State, seek leave to appeal against an order dated 17.07.2017 passed by the Federal Service Tribunal, Islamabad. Through this order, various Miscellaneous Petitions filed by the Respondents, seeking implementation of judgments/orders of the Service Tribunal have been allowed. The petitioners have been directed to implement the said judgments/orders in letter and spirit within one month, failing which coercive measures have been directed to be taken against them under the relevant provisions of law. Civil Petitions No.3451 to 3464 of 2017 AND Civil Petitions No.3473 to 3651 of 2017 2 3. The issue in the matter pertains to generation allowance, which had been allowed to generation staff of Tarbela Power Plant. Other employees of the Plant having been denied such allowance filed representations before the competent authority for grant of such allowance. These were dismissed. Therefore, they approached the Service Tribunal by way of appeals which were allowed on 22.03.1997. The petitioners challenged the order of the Service Tribunal before this Court through Civil Petitions No.840 to 844 of 1997 which were dismissed, vide order dated 10.10.1997. Subsequently, some other employees, 255 in number, also claimed the same benefits granted to other similarly placed employees. However, having been denied the same by the competent authorities their matters also ended up before the Service Tribunal which allowed their appeals on 22.10.2009. Undeterred by the dismissal of their earlier Civil Petitions before this Court, the petitioners again filed Civil Petitions No.2281 to 2534 of 2009. These too were dismissed by this Court on 12.10.2010. 4. Surprisingly enough, despite having lost all their challenges, the petitioners did not implement the judgments of the Service Tribunal and this Court. The employees were therefore constrained to seek implementation by filing Miscellaneous Petitions (MPs) before the Service Tribunal which were allowed vide order dated 31.03.2015. In an obvious effort to drag the litigation further, the petitioners yet again filed appeals before this Court, which were dismissed vide order dated 05.10.2015. Review Petitions filed against the said orders too met the same fate, vide order dated 24.02.2016. Civil Petitions No.3451 to 3464 of 2017 AND Civil Petitions No.3473 to 3651 of 2017 3 5. Having exhausted all remedies before all fora, the petitioners passed an order to implement the judgment with effect from 31.03.2015. This was a clear violation of the orders dated 22.03.1997 and 22.10.2009 passed by the Service Tribunal and upheld by this Court. The hapless employees were again constrained to approach the Service Tribunal through MPs pleading/ imploring for implementation of the judgments of the highest fora of the country. Vide impugned order dated 17.07.2017, the MPs were allowed in the following terms:- “They tried their level best upto the level of Hon’ble Apex Court but miserably failed at every forum. Now, after exhausting all the fora/remedies, they are bound to implant the judgments/orders in its true perspective and make payment of generation allowance and extend other facilities allowed to General employees like revised free electricity units and overtime allowance, etc to the petitioners/appellants from the date of their initial appointment. The respondents are given one month more time to implement the judgments/order in letter and spirit, failing which coercive measures shall be taken against them under the relevant provisions of law/rules.” 6. The learned counsel for the petitioners has argued that the impugned order of the Service Tribunal is legally and factually untenable. He maintains that the Service Tribunal has failed to appreciate the underlying philosophy, object and purpose behind the policy regarding grant of generation allowance by Wapda. He further maintains that the Service Tribunal has erred in law by interfering with the policy making domain of the Executive which is beyond the scope of its jurisdictional parameters. He has pointed out that generation allowance was only admissible to technical employees of the Power Stations who may be actually engaged in generation duties and not to others. Civil Petitions No.3451 to 3464 of 2017 AND Civil Petitions No.3473 to 3651 of 2017 4 7. We have heard the learned counsel for the petitioners and gone through the record. We find that all points raised by the learned counsel for the petitioners have repeatedly been considered, addressed and rejected by the Service Tribunal as well as this Court. The same cannot be re-agitated and reopened for the umpteenth time and the attempt on the part of the petitioners to do so reeks of mala fide. It constitutes denial of the fruits of justice and gross abuse of the process of this Court. We are disappointed, shocked and perturbed by the conduct of the State functionaries, who have blatantly violated and consciously refused to implement the judgments of the Service Tribunal as well as this Court with impunity. Such conduct must be deprecated in the strongest terms. It is the command of the Constitution that all executive and judicial authorities throughout Pakistan are bound to act in aid of this Court. Any failure to heed and implement this command cannot be taken lightly. Such conduct threatens to strike the very foundation of constitutionalism, rule of law and administration of justice. We were minded to take more stringent action but have opted to exercise judicial restraint. 8. Therefore, while dismissing these petitions and refusing leave to appeal, we impose special cost of Rs.50,000/- on Chairman, Wapda in his personal capacity. The said amount shall be paid out of his own pocket and deposited with Fatimid Foundation under intimation to the Registrar of this Court alongwith its receipt issued by the said Foundation. In view of the fact that the time of one month granted by the Service Tribunal has already expired, the petitioners shall forthwith implement the orders in letter and spirit and submit a report within 07 days of the date of receipt of this order with the Civil Petitions No.3451 to 3464 of 2017 AND Civil Petitions No.3473 to 3651 of 2017 5 Registrar of this Court. The office is directed to transmit a copy of this Court to Chairman, Wapda immediately. CHIEF JUSTICE JUDGE JUDGE ISLAMABAD, THE 15th of December, 2017. ZR/* NOT APPROVED FOR REPORTING

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