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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Iqbal Hameedur Rahman Mr. Justice Mushir Alam Civil Petition No.3460 of 2015 Against order dated 09.11.2015 of Lahore High Court, Multan Bench, passed in Writ Petition No.16621 of 2015. Munawar Hussain Bukhari Petitioner(s) VERSUS Appellate Authority/Tribunal, Alipur District Muzaffargarh & others Respondent(s) For the Petitioner(s): Syed Shabbar Raza Rizvi, ASC For Respondent No.3: Mian Ahmed Mehmood, ASC Ch. Akhtar Ali, AOR Date of Hearing: 25.03.2016 ORDER Mushir Alam, J-. The petitioner challenged the candidature of Abu Bakar, respondent No.3 herein, from his being elected as a General Councilor, Ward No.1, Municipal Committee Alipur, Tehsil Alipur, District Muzaffargarh on twofold grounds. Firstly, that he was an employee of Utility Stores Corporation of Pakistan [to be referred as the Corporation], and a period of five years has not lapsed since his dismissal from service on 26.12.2013 and secondly that he is involved in criminal cases and has been declared absconder from the Court of law and is thus disqualified to contest the elections under Section 27 of the Punjab Local Government Act, 2013 [hereinafter to be referred as ‘the Act, 2013]. The Returning Officer, vide order dated 08.10.2015 dismissed the objections raised by the petitioner and accepted the nomination papers filed by respondent No.3 to contest local bodies election. This order was maintained by the Appellate Authority/Tribunal, with the observations that “the respondent No.2/candidate was not a regular employee of Civil Petition No.3460 of 2015 2 Utility Stores Corporation of Pakistan (Private) Limited. Moreover, the appellant did fail to produce any record regarding conviction passed by any court of law against the respondent No.2/candidate.”, vide order dated 04.11.2015. Writ Petition was also dismissed, vide impugned order dated 09.11.2015 and orders passed by the lower fora were maintained on the grounds that “the respondent No.3 is not a government servant/employee neither falls in the definition of a public servant and that the documents attached by the petitioner do not show, in any manner whatsoever, that respondent No.3 has been convicted by any competent Court. Hence, the present petition. 2. Learned counsel for the Petitioner at the very outset does not press the disqualification of the respondent No.3 on the last mentioned ground that he is involved in criminal cases and has been declared absconder from the Court of law, as he has not been able to procure any material to prove any conviction from the Court of competent jurisdiction as postulated under clauses (i) and (j) of sub section (2) of section 27 of the Act, 2013. 3. Heard learned counsel for the parties and perused the record. It is not disputed that respondent No.3 was an employee of the Corporation, which is admittedly owned and controlled by the Government of Pakistan. The Act, 2013 through clauses mentioned under sub-section (2) of Section 27 thereof not only enumerates disqualifications but also period of ineligibility on account of such disqualification for the candidates and elected members. Relevant for the purposes of present controversy are the disqualification enlisted in clauses (e), (g) & (h) of subsection (2) of Section 27 of the Act, 2013, which are reproduced as under:- “(2) A person shall be disqualified from being elected or chosen as, and from being, an elected member of a local government, if he– (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 Civil Petition No.3460 of 2015 3 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; (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; (Underlined to add emphasis) 4. Learned counsel for respondent No.3 has not disputed the fact that the Corporation is a “body” corporate registered under Companies Ordinance 1984, which is owned and controlled by the Federal Government, and as per “A Functional and Legal Classification of Corporations, Autonomous Bodies and Attached Departments” issued by the National Commission for Government Reforms, Prime Minister’s Secretariat, Government of Pakistan, (placed on record through CMA#917/16). The Corporation, under the Ministry of Industries, Production & Special Initiatives, Government of Pakistan, find mentioned on page 57 at Serial No.7 thereof, therefore, there is no need to further dilate upon the status of the Corporation. Admittedly, the respondent No.3 was employed in the Corporation as a Record Keeper (BS-9) on contract basis for a period of one year, vide appointment letter dated 21.01.2013. It is also not denied that the respondent was found guilty of “misconduct” (absent from duty, disobedience, willful negligence, inefficiency, dereliction in duty) and the competent authority in terms of USC Service Rules inflicted major penalty of dismissal from service upon him with immediate effect, vide order dated 26.12.2013. 5. It may be observed that disqualification of the nature as prescribed in terms of clauses (a) to (j) to sub Civil Petition No.3460 of 2015 4 section (2) of Section 27 of the Act of 2013, more particularly, in terms of clause (e), (g) and (h) ibid subject matter of present controversy are not something novel or new to the election laws, somewhat similar disqualification in one or the other form find mentioned in various election laws, right from provisions contained under Article 5(I)(a) of the Elective Bodies (Disqualification) Order, 1959 and under the present constitutional dispensation in terms of Clauses (i), (j) and (k) of sub-Article (1) of Article 63 of the Constitution of Islamic Republic of Pakistan, 1973, Clauses (i), (j) and (k) of subsection (1A) of Section 99 of the Representation of People Act, 1976 and Clause (g) and (h) of the Punjab Local Government Ordinance, 1979 since repealed through present Act of 2013 prescribe similar disqualification for the candidates and elected members of either house of the Parliament/Assembly and or Local Bodies. 6. In order to appreciate the rival contentions of the learned ASC for the parties, it would be appropriate to define “Public Service” as used in clauses (g) and (h) of subsection (2) of Section 27 ibid. “Public Service” has not been defined under the Act of 2013. In Black’s Law Dictionary (sixth Edition year 1999) “Public Service” is defined as follows: “A term applied to the objects and enterprises of certain kinds of corporation, which specially serve the needs of the general public or conduce to the comfort convenience of an entire community, such as railroad, gas, water, and electric light companies; and companies furnishing public transportation. A public service or quasi public corporation is one private in its ownership, but which has an appropriate franchise from the state to provide for a necessity or convenience of the general public, incapable of being furnished by private competitive business, and dependent for its exercise on eminent domain or governmental agency. It is one of a large class of private corporations which on account of special franchises conferred on them owe a duty to the public which they may be compelled to perform”. And the “Public Service Corporation” is defined therein as “a utility company privately owned but regulated by the government. It may sell gas, water or electricity but its rates are established by the State”. It is not disputed that the Corporation, is fully owned and controlled by the Federal Civil Petition No.3460 of 2015 5 Government as discussed in proceeding paragraph 3, above. The Corporation, through network of its utility stores all across Pakistan, provides provisions stores at subsidies rates, to the general public. Service of such bodies, may it be statutory corporate or otherwise owned and controlled by the Government or local government or where any of such governments has a controlling share or interest is “Public Service”. Even otherwise, “Service of Corporation” has been declared to be service of Pakistan, under section 5 of the Corporation Employees (Special Powers) Ordinance 1978 (PLD (CS) 75). Merely because, a person is in ‘service of corporation’ or merely for the reason that any service in terms of Article 160 of the Constitution, 1973 is declared to be service of Pakistan, would not confer such person with the status of civil servant, within the contemplation of Civil Servant Act, 1973. For the purposes of attracting disqualification under clause (e) of subsection (2) of section 27 ibid, it is to be seen that the candidate or the elected member of the local body is in the service of “statutory body” or “body”, which is owned and controlled by or that controlling share or interest therein is of Federal, Provincial or Local Government. Thus the service of a “statutory body” or “body” of the kind mentioned in clause (e) of provision noted herein is undoubtedly “Public Service” within the contemplation of clause (g), (h) and (i) of the subsection (2) of section 27 ibid. The term ‘in the Service of any statutory body or a body which is owned or controlled by the Government or a Provincial Government or a local government or, in which any of such Government or Local government has a controlling share or interest” is a phrase similar to phrase “in service of Pakistan or of any statutory body or any body which is owned or controlled by the Federal, Provincial Government or Local Government”. Per clauses (i), (j) and (k) of sub-Article (1) of Article 63 of the Constitution of Pakistan, 1973 such phrase is further qualified with “or in which the Government has a controlling share or interest”. This Court in the case of Muhammad Mubin-us-Salam and others v. Federation of Pakistan (PLD 2006 S.C 602) has held that “Civil Civil Petition No.3460 of 2015 6 Servant is included in the definition of Service of Pakistan, the vice versa is not true”. Likewise a person in the service of “statutory body” or “body” of the kind mentioned in clause (e) of section 27 (2) ibid; performs “public service” and despite falling within the class of employees in service of Pakistan is not a “civil servant” within the purview of section 2 (a) of Civil Servants Act, 1973 and or section 2 (a) of the Services Tribunal Act, 1973. Any person, who was under the employment of a statutory body or body as discussed above and who has been removed from “Public Service” on the ground of “misconduct”, comes within the mischief of clause (g) of subsection (2) of section 27 ibid and is disqualified from being elected or chosen as member of local government unless a period of five years has lapsed from the date of such dismissal. Admittedly, Respondent No.3 was dismissed from service of the Corporation on 26.12.2013. He filed Nomination papers for the general election of local body scheduled on 2.12.15 on the date of filing Nomination papers period of five years had not lapsed from the date of his dismissal from service, and still period of embargo of such disqualification clinches to the Respondent No.3 from being a candidate and or member of Local Government. 7. As noted above learned Appellate Authority, dismissed the appeal solely on the ground that the Respondent No.3 “was not a regular employee of Utility Stores Corporation of Pakistan” and the learned Judge in Chambers in the High Court dismissed the Writ Petition observing that the “Respondent No.3 was an employee of a public company, in any case is not a government servant/employee neither fall in the definition of public servant”. Disqualification for a period of two years, five years and three years respectively from the date of resignation, dismissal, removal or compulsorily retirement from service of a person in the service of the Corporation as enumerated in clauses (e), (g) and (h) of section 27 (2) applies equally to the persons in the service of Pakistan, which includes civil servants and so also to all persons in “service of any Statutory body” or “body” of the Civil Petition No.3460 of 2015 7 kind mentioned in clause (e) of subsection (2) ibid. Only exception carved out is person who is “holders of public office and part time officials remunerated either by salary or fee”. Respondent No.3 does not fall within the excepted category. The provision under discussion also does not make any distinction between the regular or contractual employee of the statutory body or body of the kind under discussion. 8. In the case of Muhammad Nasir Turyali v. Ghulam Sarwar Khan (PLD 2005 Supreme Court 570), wherein the appellant was appointed as a Management Trainee in a company owned by the Federal Government, duly elected and such election was successfully challenged and maintained up to this Court. Para 9 thereof, specifically dealing with the nature of disqualification as urged in the case in hand is reproduced as under:- “The Expressions “service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest” should not be confused with “Civil Service” or a “Civil Servant”. It is not circumscribed by any concept of salary or fee. It connotes any service, post or office in the statutory body regulated by the Rules or Regulations framed by the competent authority. The only rider is that the said statutory body should either be owned or controlled by the Government. It is nobody’s case that the Company is not owned and controlled by the Federal Government. Appellant Muhammad Naseem Turyali was appointed as Management Trainee and he was in the service of the Company which was owned by the Federal Government and thus he was squarely hit by Article 63(1)(e) and (k) of the Constitution of Islamic Republic of Pakistan” 9. Plea of “contractual employment” , as urged by the Respondent No.3 herein, was considered by a Larger Bench (5 members) of this Court in the case of Abida Hussain v. Tribunal for N.A. 69 (PLD 1994 S.C 60) and while interpreting Section 99 of Representation of People Act, 1976 read with Articles 63(1), 260(1) & 240 of the Constitution of Islamic Republic of Pakistan, 1973 it maintained the disqualification as a period of two years having not passed since the petitioner therein relinquished the charge of her post as an Ambassador, which was a contractual appointment for a period of two years. It was held that irrespective the person Civil Petition No.3460 of 2015 8 was not a civil servant within the meaning of Civil Servants Act would not put him beyond the pale of the definition of service of Pakistan. 10. In another case cited as Imtiaz Ahmed Lali v. Ghulam Muhammad Ali (PLD 2007 Supreme Court 369), the appellant therein, was dismissed from Police Service on the ground of misconduct; challenge to his nomination papers were, sustained by the fora below, however, the High Court allowed him to contest the election. Post election challenge made through election petition, was sustained and it was held that “dismissal from service on the ground of misconduct is self acquired and cannot be removed by afflux of time”. In the case of Waqar Hussain Shah v. Returning Officer, Union Council No.31 (2002 SCMR 404), contention of the petitioner therein that he was an employee on contract basis and therefore not disqualified was repelled and this Court in para 4 of its judgment while interpreting analogous provision held that “the Legislature in its own wisdom has not excluded employees on contract basis from the purview of this section”. 11. Learned counsel for the respondent when confronted with the above, has placed heavy reliance on a Lahore High Court’s larger Bench (three members) decision reported as Muhammad Iqbal v. District Returning Officer (PLD 2006 Lahore 13), wherein the similar disqualification as noted in clause (e) of section 27(2) ibid contained in Section 152 (1)(g) of Punjab Local Government Ordinance, 2001 came under discussion of the Court, nomination of the petitioner therein rejected by the District Returning Officer was accepted by the High Court and it was held that: “prima facie, petitioner No.1 was not a regular employee of WASA/LDA and his tenure as work charge employee each time remained short of 90 days and he was not confirmed in service. Tentatively, he was not disqualified to contest the election. Since determination of his disqualification requires holding of detailed trial and recording of evidence which exercise is not permissible within constitutional jurisdiction of this Court. The Province of East Pakistan v. Kshiti Dhar Roy and others (PLD 1964 SC 636) up-to date, including the case of Muhammad Younas Khan and 12 others v. Government of NWFP Civil Petition No.3460 of 2015 9 through Secretary Forest and Agriculture, Peshawar and others (1993 SCMR 618) and since the petitioners have succeeded in the elections and their result has already been notified, we dispose of this petition allowing the petitioners to continue in office and permitting the respondents to challenge their election, if they so wish, on the basis of pre-election disqualification through a petition under Rule 76 of the Punjab Local Government Rules, 2005, where-under such a petition is maintainable before the Election Tribunal concerned.” Above cited judgment does not rescue the Respondent No.3, as the High Court observed that “Tentatively, he was not disqualified to contest the election. It may be observed that even under the repealed Punjab Local Government Ordinance 2001, “holders of (elected) public office and part time officials remunerated either by salary or fee” {word (elected) is additional word} were also kept out of the pale of such barring provisions. In cited case “employee on work charged” basis, on tentative determination, was not considered to be falling within the category of employee coming within the net of barring clause. It may be observed that it was merely a tentative assessment, and not a conclusive determination of the Court whether the work charge employee would fall within the exempted category of the employee of the Corporation or otherwise. Such controversy was left to be determined in regular election Petition and the Bench abstained from making a conclusive determination to such an effect, nor we intend to enter into such realm, being not germane to the issue in hand. 12. In view of the foregoing discussion, impugned judgments of the High Court and orders of the forums below cannot be sustained. On the date of nomination, Respondent No.3 was under legal bar to contest election of Local Government as five years had not elapsed from the date of his dismissal dated 26.12.2013 from public service of the Corporation. 13. It was vainly urged that since elections have been held and the respondent has returned successful, the petition is liable to be dismissed as the petitioner could have Civil Petition No.3460 of 2015 10 challenged such election through regular Election Petition under Section 38 of the Act, 2013. Indeed, under the Punjab Local Government (Conduct of Elections) Rules 2013 Returning Officer, and so also the Appellate Tribunal are vested with summary jurisdiction to examine and decide question of qualification and or disqualification of a candidate, in case such determination is dependent on detail enquiry or necessitating recording of evidence; than such determination is left to be agitated and determined at the regular trial in post election petition under Section 38 before the Election Tribunal constituted under Section 39 of the Act, 2013. In the instant case, it is noted that the Respondent No.3 was still under the spell of five years bar within the contemplation of clause (g)’ of subsection (2) of section 27 of the Act, 2013 to contest election on the seat of General Councilor, Local Government, scheduled to be held on 5.12.2015. The bar to run for the election was attached all along right from the inception of nomination papers, throughout the challenge and even during the pendency of instant CPLA, however, during the course of proceedings before this Court on 03.12.2015 while adjourning the matter, the Court declined to stay the process of election and it was however ordered that “the respondent No.3 is, however, allowed to contest the elections which will be subject to the decision of this Court”. 14. In instant case no detail and or elaborate enquiry was required to be made by the fora below; facts were straightforward and mostly admitted. The disqualification (i.e. “dismissed from public service on the ground of misconduct”) of the Respondent No.3, within the contemplation of clause (g) of Section 27 (2) of the Act, 2013, as the bar to contest election of local government subsisted since very inception of filing of his nomination papers as the period of five years from the date of his dismissal (w.e.f. 26.12.1013) from service of the Corporation had not lapsed. Even otherwise, in view of the legal position as discussed above fate would not have been different than what is being achieved at the time of final determination now. In the case of Mohd. Sadeque v. Rafiq Ali Civil Petition No.3460 of 2015 11 (PLD 1965 Dacca 330), a Division Bench of the Dacca High Court, repelled the contention that delay in decision of the writ petition, when the respondent earned the qualification during the pendency of the petition, was not entertained to deny the relief. In instant case, the bar still subsists, we have no doubt in our mind that at the time of filing nomination papers the Respondent No.3 was not eligible to put up his candidature for the office of General Councilor of Ward No.1 Alipur, his election is void ab-initio, and as observed above, even the fate of the challenge to his election, in post election scenario would not have yielded a different result. 15. Consequently, impugned judgment of the High Court dated 9.11.2015 and so also order of the Appellate Tribunal Alipur, dated 4.11.2015 and that of the Returning Officer dated 8.10.15 are set aside. Objections filed by the Petitioner to the candidature of Respondent No.3 are sustained. Nomination papers filed by the Respondent No.3 stand rejected. This Petition is converted into appeal and allowed with cost throughout. Judge Judge ISLAMABAD, THE 25th of March, 2016 ZR/-

{'id': 'C.P.L.A.3460_2015.pdf', 'url': ''}

{'id': 'C.P.L.A.3460_2015.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 3499 OF 2016 (On appeal against the order dated 25.10.2016 passed by the Lahore High Court, Multan Bench in Writ Petition No. 15172/2016) Malik Abid Hussain … Petitioner VERSUS Returning Officer, Wards 1 to 47 Municipal Committee etc … Respondents For the Petitioner: Mr. Dil Muhammad Khan Alizai, ASC Mr. Mehmood A. Sheikh, AOR (Absent) For the Respondents: N.R. Date of Hearing: 15.11.2016 Announced on: 16.11.2016 JUDGMENT FAISAL ARAB, J.- The petitioner was one of the candidates on the reserved seat of ‘Worker’ of the Municipal Committee, Muzaffargarh. Respondent No. 2, who was also a candidate for the said seat, sought rejection of petitioner’s nomination papers on the ground that the petitioner is not a worker as he holds LPG dealership and operates his business from a business concern established in the name of ‘Malik Electro Gas Centre, Multan Road, Muzzaffargarh; that being a businessman, he is a tax payer having 0114289-5 as his National Tax Number and has also been elected as President of the LPG Union, Muzzaffargarh. Respondent No.2’s plea for rejection of petitioner’s nomination papers however did not find favour with the Returning Officer, who accepted latter’s nomination. 2. The acceptance of petitioner’s nomination was challenged by Respondent No. 2 in Election Appeal No. 08/2016 before the Additional District & Sessions Judge, Muzaffargarh who was the Civil Petition No. 3499/2016 2 Appellate Authority for the Local Bodies Elections, 2016. After taking into consideration contents of the letter written by DCO Muzzaffargarh to the Secretary Industries, Government of Punjab, wherein the petitioner was shown as one of the distributors of LPG in the District of Muzaffargarh and the contents of the daily report of District Office (Civil Defence) regarding LPG prices issued by the District Officer (Civil Defence) Muzaffargarh which reflected the name of the petitioner as dealer/distributer of LPG and the fact that the petitioner held the office of the President of LPG Union, the Appellate Authority came to the conclusion that the petitioner does not fall within the ambit of the definition of ‘worker’ as defined in Section 2 (mmm) of the Punjab Local Government Act, 2013 and rejected his nomination papers vide order dated 22.10.2016. The petitioner then challenged the decision of the Appellate Authority in Writ Petition No. 15172/2016 before the Lahore High Court, Multan Bench but the same was dismissed vide impugned order dated 25.10.2016, hence this petition. 3. Learned counsel for the petitioner contended that the petitioner’s claim of being a ‘worker’ ought not to have been rejected summarily at pre-election stage and in case the petitioner is elected, the same can be challenged after the election. He concluded by stating that depriving the petitioner of his right to contest the elections in summary proceedings amounts to disenfranchising him. In support of this contention he relied upon the case of Muhammad Mujtaba Abdullah Vs. Appellate Authority Tehsil Liaquatpur District Rahim Yar Khan (2016 SCMR 893). 4. It has undisputedly come on the record that the petitioner is a dealer of LPG and distributes LPG from his business concern i.e. ‘Malik Electro Gas Centre, Multan Road, Muzzaffargarh’. He also held the office of President of LPG Union which takes care of the business of the traders who sell LPG gas to consumers from their outlets in Tehsil Muzaffargarh. As a tax payer, the petitioner has a National Tax Number as well. In the decision rendered by the Appellate Authority, which has been affirmed in impugned judgment, it is clearly stated that on an inquiry from DCO Muzaffargarh, the Secretary Industries, Government of Punjab confirmed that the petitioner is one of the LPG distributors of District Muzaffargarh, having dealership contract for Civil Petition No. 3499/2016 3 Muzaffargarh Tehsil. We have also noted that status of the petitioner, that was made basis for rejecting his nomination papers by the Appellate Authority, has not been specifically denied by the petitioner either in memo of Writ Petition that he filed in the High Court or in the present petition seeking leave to appeal. The Punjab Local Government Act, 2013 has defined ‘worker’ in Section 2 (mmm) in the following words: “‘worker’ means a person directly engaged in work or is dependent on personal labour for subsistence living and includes a worker as defined in the Punjab Industrial Relations Act, 2010.” Thus only such person, who is directly engaged in physical work and for his subsistence rely on physical labour or falls within the definition of ‘worker’ as contained in the Punjab Industrial Relations Act, 2010 qualifies to contest election on the reserved seat of ‘worker’ and not a person who is a businessman or a trader. Similar view has been taken by this Court in the case of Muhammad Hussain Vs. District Returning Officer (2008 SCMR 488). 5. In the present case the petitioner has nowhere denied his status of being a dealer/distributor of LPG for the Tehsil of Muzaffargarh. Being in the business of LPG, the petitioner also did not deny that he held the position of the President of LPG Union of Muzaffargarh that comprises of LPG traders of Muzaffargarh, he therefore cannot arrogate to himself the status of a worker as defined in the Punjab Local Government Act, 2013. We therefore find no legal justification to interfere with the impugned order. This petition having no merit is accordingly dismissed and leave is refused. JUDGE JUDGE JUDGE Islamabad, the Announced on 16.11.2016 by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram

{'id': 'C.P.L.A.3499_2016.pdf', 'url': ''}

{'id': 'C.P.L.A.3499_2016.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. 3525 OF 2018 (On appeal against the judgment dated 18.07.2018 passed by the Punjab Service Tribunal, Lahore in Appeal No. 285/2017) Fayyaz Hussain …Petitioner(s) VERSUS Executive District Officer (Education), City District Government, Rawalpindi and others …Respondent(s) For the Petitioner(s): Mr. Muhammad Munir Paracha, ASC Mr. Mehmood Ahmad Sheikh, AOR For the Respondent(s): Not represented Date of Hearing: 10.03.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the judgment dated 18.07.2018 passed by the Punjab Service Tribunal, Lahore, whereby the Service Appeal filed by him was dismissed and the major penalty of “removal from service” was maintained. 2. Briefly stated the facts of the matter are that petitioner while serving as EST Teacher in Government Boys Elementary School, Darnoian, Tehsil Kotli Sattian was proceeded against under Punjab Employees Efficiency, Discipline and Accountability Act, 2006, for the charges of (i) misconduct, (ii) willful absence from duty since 01.09.2008, and (iii) non-production of service record. The District Education Officer (M-EE), Rawalpindi i.e. competent authority after dispensing with the regular inquiry issued show cause notice to the petitioner. He was also served three notices for personal hearing but he did not appear before the competent authority rather his brother appeared on his behalf. Ultimately, the Civil Petition No. 3525 of 2018 2 competent authority dismissed him from service vide order dated 04.06.2010. The petitioner then filed departmental appeal before the Executive District Officer (Education), Rawalpindi being appellate authority, who vide order dated 11.06.2012 reinstated the petitioner into service and directed the District Education Officer (M-EE) to proceed against him on the charge of absence from service after fulfilling all codal formalities including personal hearing. After remand, an inquiry was conducted wherein the charge of absence against the petitioner was found proved, hence, the competent authority vide order dated 14.10.2016 awarded him major penalty of removal from service with effect from 01.09.2008 i.e. the date from which he absented himself from duty. The departmental appeal filed by the petitioner stood rejected by the appellate authority vide order dated 16.12.2016. Being aggrieved, he filed Service Appeal before the Punjab Service Tribunal but it also met the same fate vide impugned judgment dated 18.07.2018. Hence, this petition seeking leave to appeal. 3. Learned counsel for the petitioner inter alia contended that while imposing major penalty of removal from service, the competent authority did not comply with the provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006; that the inquiry officer had observed that as the petitioner has been reinstated by the appellate authority, the inquiry on the same charges is not justified, therefore, the learned Punjab Service Tribunal without taking into consideration this aspect of the matter has wrongly dismissed the appeal. 4. We have heard learned counsel for the petitioner at some length and have perused the record. 5. It is admitted position that the petitioner remained absent from duty for a period of eight long years without obtaining any leave from the department. The record shows that he went abroad. It is on record that in the earlier departmental proceedings, he was issued three notices for personal hearing but instead of personally appearing before the competent authority he sent his brother. His absence was confirmed by the Head Master of the School where the petitioner was serving. The competent authority i.e. District Education Officer (M-EE), Rawalpindi had also visited the Civil Petition No. 3525 of 2018 3 school and found the petitioner absent from duty. Despite that to meet the ends of justice, de novo proceedings were directed to be carried out against the petitioner on the charge of absence. An inquiry officer was deputed to probe into the matter, who found the petitioner guilty of the charge. The petitioner was also heard by the competent authority in person and after that major penalty of removal from service was imposed upon him. Learned counsel for the petitioner did not dispute the fact of absence but he tried to make out a case by contending that while imposing major penalty of removal from service, requisite codal formalities were not fulfilled. In view of the above when an inquiry was conducted, petitioner was personally heard and was provided full opportunity to present his case, it cannot be said that the department had not fulfilled the requirements provided under Punjab Employees Efficiency, Discipline and Accountability Act, 2006. Even otherwise, it is now well settled that where the absence from duty is admitted, there is no need to hold regular inquiry. This Court in a recent judgment reported as National Bank of Pakistan Vs. Zahoor Ahmed (2021 SCMR 144) while relying on an earlier judgment of this Court has held as under:- “In the face of such absence from duty of the respondent, which being admitted, there was no need to hold a regular enquiry because this Court in the case of Federation of Pakistan through Secretary Ministry of Law and Justice Division, Islamabad v. Mamoon Ahmed Malik (2020 SCMR 1154), has already held that where the fact of absence from duty being admitted on the record, there was no need for holding of a regular enquiry for that there was no disputed fact involved to be enquired into.” (Underlined to lay emphasis) 6. So far as the argument of the learned counsel for the petitioner that when the inquiry officer had observed that the inquiry on the same charges is not justified, the competent authority ought to have refrained from passing the impugned order is concerned, suffice it is to state that the findings of the inquiry officer are not binding on the competent authority and secondly, when the inquiry officer had found that “all the allegations lodged against accused are proved beyond any doubt”, no benefit could be given to the petitioner. Article 212(3) of the Constitution of Islamic Republic of Pakistan specifically mandates that “an appeal to the Supreme Civil Petition No. 3525 of 2018 4 Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.” No such question of law of public importance within the meaning of aforesaid Article 212(3) of the Constitution has been raised by the learned counsel for the petitioners, calling for interference by this Court. 7. 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 10th of March, 2021 Not Approved For Reporting Khurram

{'id': 'C.P.L.A.3525_2018.pdf', 'url': ''}

{'id': 'C.P.L.A.3525_2018.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE IJAZ UL AHSAN CIVIL PETITIONS NO.3551 TO 3555 OF 2015 (on appeal from the judgment of the Islamabad High Court, Islamabad dated 23.09.2015 passed in I.T.R. Nos.224- 228/2015) M/s Pakistan Television Corporation Ltd. … Petitioner(s) (In all cases) VERSUS Commissioner Inland Revenue (Legal), LTU, Islamabad etc. … Respondent(s) (In all cases) For the petitioner(s): Mr. M. Makhdoom Ali Khan, Sr. ASC Hafiz Muhammad Idris, ASC Mr. Faisal Hussain Naqvi, ASC. Syed Rifaqat Hussain Shah, AOR (In all cases) For the respondent(s): Mr. Muhammad Bilal, Sr. ASC Mr. Babar Bilal, ASC. Mr. Ehsan Ullah Khan, Dy. Commissioner Inland Revenue (In all cases) Date of hearing: 07.03.2017, 14.03.2017 & 15.03.2017 … JUDGMENT MIAN SAQIB NISAR, CJ.- The facts of the instant cases are that the petitioner, Pakistan Television Corporation Ltd. (PTV) collects ‘television license fee’ from consumers. This fee was previously collected by the Water and Power Development Authority (WAPDA), and now by the successor Electricity Distribution and Supply Companies (DISCOS) for PTV in pursuance of an agreement dated 01.07.2004, through monthly electricity bills. WAPDA (this expression shall include DISCOs) would remit the balance license fee to PTV after retaining a portion of it as their fee for this collection service. PTV claimed the service charges retained by WAPDA as expenditure in terms of Section 21 of the Income Tax Ordinance, 2001 (the Civil Petitions No.3551 to 3555 of 2015 -: 2 :- Ordinance) in the income tax returns it filed for the tax years 2009 to 2013, which stood finalized under Section 120(1) of the Ordinance. Show cause notices was issued to PTV for further amendment of the assessments in terms of Sections 122(5A) and 122(4) of the Ordinance on the ground that the original assessments were erroneous as they were prejudicial to the interest of revenue for the reason that the ‘television license fee collection expense’ is a commission earned by WAPDA and PTV was required to deduct tax under Section 233 of the Ordinance, and since this was not done, therefore this expense was liable to be disallowed under Section 21(c) of the Ordinance (note:- the assessment was once amended under Section 122(5A) of the Ordinance for some other reason but this is not relevant for the purposes of the instant issue). Thus the said expense was disallowed and the assessment orders were accordingly further amended. This amendment was upheld throughout: before the Commissioner Income Tax (Appeals), the Income Tax Appellate Tribunal (the Tribunal) and the learned High Court, hence these petitions. 2. For the sake of brevity, the arguments of the learned counsel are not being recorded separately, rather would reflect in the course of this opinion. The key question involved in this matter is whether PTV was not entitled to deduct as expenditure, the service fee retained by WAPDA, as per the provisions of Section 21(c) of the Ordinance. In this regard, the relevant provisions of the Ordinance (as they existed at the relevant time, i.e. for the tax years 2009 to 2013) read as under:- 21. Deductions not allowed.— Except as otherwise provided in this Ordinance, no deduction shall be allowed in computing the income of a person under the head “Income from Business” for – (a) … (b) … (c) any salary, rent, brokerage or commission, profit on debt, payment to non-resident, payment for services or fee paid by the person from which the person is required to deduct tax under Division III of Part V of Civil Petitions No.3551 to 3555 of 2015 -: 3 :- Chapter X or section 233 of Chapter XII, unless the person has paid or deducted and paid the tax as required by Division IV of Part V of Chapter X; … 1153. Payments for goods and services.— (1) Every prescribed person making a payment in full or part including payment by way of advance to a resident person or permanent establishment in Pakistan of a non-resident person— (a) ………………………………………………………… (b) for the rendering of or providing of services; (c) ………………………………………………………… shall, at the time of making the payment, deduct tax from the gross amount payable at the rate specified in Division III of Part III of the First Schedule. … (6) The tax deducted under this section shall be a final tax on the income of a resident person arising from transactions referred to in sub-sections (1) and (1A): … (9) In this section,— “prescribed person” means— … (b) a company 2153. Payments for goods, services and contracts.— (1) Every prescribed person making a payment in full or part including a payment by way of advance to a resident person or 3[* * *]— (a) ………………………………………………………… (b) for the rendering of or providing of services; (c) ………………………………………………………… shall, at the time of making the payment, deduct tax from the gross amount payable (including sales tax, if any) at the rate specified in Division III of Part III of the First Schedule. (2) ……………………………………………………………… (3) The tax 4[deductible] under clauses (a) and (c) of sub- section (1) and under sub-section (2) of this section, on the income of a resident person or 5[* * *], shall be final tax. Provided that,— 1 As it read prior to the Finance Act, 2011 (XVI of 2011). 2 As it read in 2013 after substitution by the Finance Act, 2011 (XVI of 2011). 3 The words “permanent establishment in Pakistan of a non-resident person” omitted by the Finance Act, 2012 (XVII of 2012). 4 Substituted for the word “deducted” by the Finance Act, 2012 (XVII of 2012). 5 The words “permanent establishment of a non-resident person” omitted by the Finance Act, 2012 (XVII of 2012). Civil Petitions No.3551 to 3555 of 2015 -: 4 :- (a) ………………………………………………………… (b) tax 6[deductible] shall be a minimum tax on transactions referred to in clause (b) of sub-section (1); and … 161. Failure to pay tax collected or deducted.— (1) Where a person– (a) fails to collect tax as required under Division II of this Part or Chapter XII or deduct tax from a payment as required under Division III of this Part or Chapter XII or as required under section 50 of the repealed Ordinance; or (b) having collected tax under Division II of this Part or Chapter XII or deducted tax under Division III of this Part or Chapter XII fails to pay the tax to the Commissioner as required under section 160, or having collected tax under section 50 of the repealed Ordinance pay to the credit of the Federal Government as required under sub-section (8) of section 50 of the repealed Ordinance, the person shall be personally liable to pay the amount of tax to the Commissioner who may pass an order to that effect and proceed to recover the same. … (1B) Where at the time of recovery of tax under sub- section (1) it is established that the tax that was to be deducted from the payment made to a person or collected from a person has meanwhile been paid by that person, no recovery shall be made from the person who had failed to collect or deduct the tax but the said person shall be liable to pay 7[default surcharge] at the rate of eighteen per cent per annum from the date he failed to collect or deduct the tax to the date the tax was paid. (2) A person personally liable for an amount of tax under sub-section (1) as a result of failing to collect or deduct the tax shall be entitled to recover the tax from the person from whom the tax should have been collected or deducted. 162. Recovery of tax from the person from whom tax was not collected or deducted.— (1) Where a person fails to collect tax as required under Division II of this Part or Chapter XII or deduct tax from a payment as required under Division III of this Part or Chapter XII, the Commissioner may pass an order to that effect and recover the amount not collected or deducted from the person from whom the tax 6 Substituted for the word “deducted” by the Finance Act, 2012 (XVII of 2012). 7 Substituted for the words “additional tax” by the Finance Act, 2010 (XVI of 2010). Civil Petitions No.3551 to 3555 of 2015 -: 5 :- should have been collected or to whom the payment was made. (2) The recovery of tax under sub-section (1) does not absolve the person who failed to deduct tax as required under Division III of this Part or Chapter XII from any other legal action in relation to the failure, or from a charge of 8[default surcharge] or the disallowance of a deduction for the expense to which the failure relates, as provided for under this Ordinance. 233. Brokerage and commission.— (1) Where any payment on account of brokerage or commission is made by the Federal Government, a Provincial Government, a Local Government, a company or an association of persons constituted by, or under any law (hereinafter called the “principal”) to a person (hereinafter called the “agent”), the principal shall deduct advance tax at the rate specified in 9[Division II of] Part IV of the First Schedule from such payment. (2) If the agent retains Commission or brokerage from any amount remitted by him to the principal, he shall be deemed to have been paid the commission or brokerage by the principal and the principal shall collect advance tax from the agent. (3) Where any tax is 10[required to be] collected from a person under sub-section (1), 11[such tax] shall be the final tax on the income of such persons. 3. We find it appropriate to first deal with the objection raised by the learned counsel for the respondent that no question of law emerged from the order of the Tribunal and, since a reference before the High Court can only be filed on a question of law and not on a question of fact, therefore the tax references were not maintainable. Responding to this, the learned counsel for the petitioner submitted that the jurisdiction of the High Court, in a tax reference, can be invoked where:- (a) the Tribunal has decided a question of law incorrectly; (b) the Tribunal has decided a question of law not before it, whether correctly or incorrectly; or (c) the 8 Substituted for the words “additional tax” by the Finance Act, 2010 (XVI of 2010). 9 Inserted by the Finance Act, 2010 (XVI of 2010). 10 Inserted by the Finance Act, 2012 (XVII of 2012). 11 Substituted for the words “the tax so collected” by the Finance Act, 2012 (XVII of 2012). Civil Petitions No.3551 to 3555 of 2015 -: 6 :- Tribunal has not decided a question of law before it. He stated that it cannot be said that the High Court shall have no jurisdiction where the Tribunal has failed to decide a question of law before it. An interpretation which restricts the scope of the reference in the High Court to categories (a) and (b) would mean that the Tribunal could deny the High Court’s jurisdiction simply by failing to decide questions of law before it. Undoubtedly, a reference under Section 133 of the Ordinance would lie before the High Court on a question of law only, however, in the instant cases, the issues (and in the statement of case) before the High Court required an interpretation of various provisions of the Ordinance including Sections 21, 153 and 233 which were essentially questions of law. We have examined the order of the Tribunal and find that the above questions of law do arise therefrom, resultantly the tax references before the learned High Court were maintainable. 4. Section 18 of the Ordinance provides the various incomes of a person which would be chargeable to tax under the head ‘income from business’ and the television license fee earned by PTV constitutes the profits and gains of its business carried on throughout the year. Section 20 of the Ordinance allows, subject to the Ordinance, deductions for any expenditure incurred by a person during the year in computing their income chargeable to tax under the head ‘income from business’. PTV claimed deductions by declaring the service fee paid to WAPDA as expenditure. It is the department’s stance that since Section 20 ibid was subject to the Ordinance, therefore PTV was required to deduct tax under Section 153(1)(b) of the Ordinance, or alternatively under Section 233 thereof, and it did not pay or deduct and pay such advance tax, thus PTV could not be allowed deduction of expenditure under Section 21(c) of the Ordinance. The general rule is that deduction of expenditure incurred by a person, in a year, for the purposes of business is allowed under Section 20 Civil Petitions No.3551 to 3555 of 2015 -: 7 :- of the Ordinance. Section 21 of the Ordinance creates an exception thereto where no deduction is to be allowed in computing the income of a person under the head ‘income from business’ for various items, including “payment for services or fee paid by the person from which the person is required to deduct tax under Division III of Part V of Chapter X or section 233 of chapter XII…” The department has taken two alternate pleas:- (i) PTV was bound to deduct tax from the gross amount payable to WAPDA for the rendering/providing of services under Section 153(1)(b) of Division III of Part V of Chapter X of the Ordinance; and/or (ii) PTV, the principal, was bound to deduct/collect advance tax from WAPDA, the agent, under Section 233 of the Ordinance. Therefore PTV could not claim the service fee as expenditure and deduct the same from its income. 5. With regard to the first plea, PTV’s stance is that as no payment was made by the petitioner to WAPDA, therefore, the provisions of Section 153 supra are not applicable. The said section provides that every prescribed person making a payment in full or part, including a payment by way of advance, to a resident person etc. for the rendering of or providing of services, shall, at the time of making the payment, deduct tax from the gross amount payable at the rate specified in Division III of Part III of the First Schedule. The term ‘prescribed person’ is defined in Section 153(7)(i) of the Ordinance, part (b) whereof includes ‘a company’ thus PTV was a prescribed person for the purposes of Section 153 supra. WAPDA admittedly is a ‘resident person’ as per the definition provided in Section 2(52) of the Ordinance. When we confronted learned counsel for the petitioner with the hypothesis that since PTV was making payments in the form of a service fee to WAPDA for the collection of television license fee from the consumers, the former was liable to deduct tax in terms of Section 153(1)(b) supra, he candidly conceded that had the amount of television license fee come to PTV in full and then been made over as Civil Petitions No.3551 to 3555 of 2015 -: 8 :- payment of service fee to WAPDA, the former would have been bound to deduct tax. However, in the instant case, no payment was ever made by PTV to WAPDA, rather WAPDA collected the television license fee from the consumers through electricity bills, deducted its fee for this collection service and remitted the balance amount to PTV. Therefore, PTV was unable to deduct tax. At this juncture, it would be useful to examine Section 158 of the Ordinance which stipulates the time of deduction of tax. Sub-part (b) thereof is relevant which provides that a person required to deduct tax from an amount paid by the person shall do so (in cases other than that of deduction under Section 151 of the Ordinance) at the time the amount is actually paid. The effect of the combined reading of Sections 153(1)(b) and 158(b) of the Ordinance makes it clear that deduction is to be made by a person “making the payment” “at the time the amount is actually paid”, and as stated earlier, in the instant case, the payment was not channeled from PTV to WAPDA, thus the former could not possibly deduct tax. 6. Another aspect of this matter is that the only way PTV could have been required to pay tax in this situation was if an obligation was imposed on it to collect the amount of tax from WAPDA, which Section 153 supra did not provide for. In circumstances such as those in the instant matters, where the Ordinance requires a person to deposit tax in the treasury it either uses the term ‘deduct’ or ‘collect’. There is a distinction between the two which needs to be appreciated. In this context we find it appropriate to ascertain the true import of both words which have been defined as follows:- Deduct: To take away (a number, amount, etc.)12 To take away money, points, etc. from a total amount13 12 Chambers 21st Century Dictionary (Reprinted 2007) 13 Oxford Advanced Learner’s Dictionary (9th Ed.) Civil Petitions No.3551 to 3555 of 2015 -: 9 :- Abate, attenuate, bate, cheapen, cut, cut down, decrease, deflate, deplete, depreciate, devaluate, dilute, diminish, discount, downgrade, dwindle, lessen, lower, make less, make smaller, mark down, remove, render few, shrink, slash, strike off, strip, subduct, subtract, take away, take off, trim, truncate, withdraw14 Collect: To bring or be brought together; to gather; to get something from people, e.g. money owed or voluntary contributions etc.15 To bring things together from different people or places; to ask people to give you money for a particular purpose16. Accept, acquire, appropriate, arrogate, assume, be given, be paid, collect payment, demand and obtain payment, exact payment, execute, gain, get back, get money, get possession of, levy, obtain payment, profit, raise, raise contributions, raise funds, reacquire, realize, receive money, receive payment, reclaim, recompense, recoup, recover, redeem, regain, retrieve, secure, secure payment, sequester, settle accounts with, take back again, take possession17 From the above, it is clear that the words ‘deduct’ and ‘collect’ cater to two different situations. A perusal of the various provisions of the Ordinance in which the words ‘deduct’ or ‘collect’ (or both) are used indicates that the former is used where payment is being made by a person and he is required to take away or subtract a percentage of such payment as advance tax to be deposited with the treasury, whereas the latter is employed where the person receiving the payment is to deposit advance tax on behalf of the person making the payment. The key is how the money changes hands. This reasoning is supported by Section 233 supra itself. The legislature used the word ‘deduct’ in Section 233(1) of the Ordinance to cover situations where the brokerage or commission payment is made by the principal to the agent and the former would be 14 Legal Thesaurus AH 34 (Regular Ed. Published 1981) by William C. Burton 15 Supra (n 12) 16 Supra (n 13) 17 Supra (n 14) Civil Petitions No.3551 to 3555 of 2015 -: 10 :- liable to deduct tax from such payment. However it used the word ‘collect’ in Section 233(2) of the Ordinance and introduced a legal fiction therein to cater to situations where payment of the entire amount was received by the broker or the commission agent who, after retaining his commission, remitted the rest of the amount to the principal, thus the former would be deemed to have been paid by the latter, who would collect the amount of tax from the former. Had it been the legislature’s intention that ‘deduct’ appearing in Section 153 supra be construed the same way as in Section 233 supra, it would have introduced a similar legal fiction in the former provision and also used the word ‘collect’. The absence of the same points to the legislature’s intention that ‘deduct’ in Section 153 supra is to be read restrictively and cannot be interpreted liberally so as to extend its scope to include collection. It is trite law that fiscal statutes, particularly the provision creating a tax liability, must be interpreted strictly and any doubt arising therefrom must be resolved in favour of the taxpayer. In this respect, reference may be made to the judgments reported as Chairman, Federal Board of Revenue, Islamabad Vs. Messrs Al-Technique Corporation of Pakistan Ltd. and others (PLD 2017 SC 99), Commissioner of Income Tax Legal Division, Lahore and others Vs. Khurshid Ahmad and others (PLD 2016 SC 545), Zila Council Jhelum through District Coordination Officer Vs. Messrs Pakistan Tobacco Company Ltd. and others (PLD 2016 SC 398), Government of Sindh through Secretary and Director General, Excise and Taxation and another Vs. Muhammad Shafi and others (PLD 2015 SC 380) and Commissioner of Income Tax Vs. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCMR 1279). Further, in the judgment reported as The State Vs. Zia-Ur-Rehman and others (PLD 1973 SC 49), while interpreting Article 281 of the Constitution of the Islamic Republic of Pakistan, 1973, a five member bench of this Court held:- Civil Petitions No.3551 to 3555 of 2015 -: 11 :- “It is a well-established rule that we have to gather the intention of the law-maker from the words used by it; and if it has in two clauses of the same Article used different words, then it follows that its intention is not the same, particularly, where such a conclusion also appears to be in consonance with reason and justice.” The legislature, therefore, being aware of the distinct meanings of these words, consciously used them asymmetrically, and not interchangeably, in various provisions of the Ordinance, be it either word or both. The use of only the word ‘deduct’ in Section 153(1)(b) supra is to our mind intentional. If the legislature had the intention to cover any other situation, it could have conveniently used the word ‘collect’ in the said section (or introduced a legal fiction), as it has done in many other provisions of the Ordinance. This reasoning is augmented by the fact that the legislature has, by virtue of the Finance Act, 2016 (XXIX of 2016) substituted Section 21(c) supra which now contains the phrase “deduct or collect”. Therefore, as Section 153(1)(b) supra only requires prescribed persons to deduct, and not collect, tax from the payment being made to a resident person for the rendering of or providing of services at the time of making the payment, PTV could not have possibly deducted such tax as it did not make any actual payments to WAPDA. It is settled law that the statute is the edict of the legislature and the language employed in the statute is determinative of the legislative intent. From the reading of Section 153(1)(b) supra, on the principle of literal interpretation, the legislative intent is evident: that the prescribed person at the time of making payment to a resident person etc. shall deduct the amount so envisaged by Division III of Part III of the First Schedule. However when payment is not being actually, physically or practically made by the Civil Petitions No.3551 to 3555 of 2015 -: 12 :- prescribed person the possibility of deduction does not arise at all. It is absolutely impracticable and impossible to deduct a certain amount from an amount which is not being paid. Therefore, from the above, we are not persuaded to hold that the interpretation of such section can be extended to require something to be done which is not possible. 7. We now advert to the applicability of Section 233 of the Ordinance. According to sub-section (2) thereof, if an agent retains the commission from any amount he remits to the principal, the former shall be deemed to have been paid the commission by the latter, who shall collect advance tax from the former. The relationship of principal and agent is a sine qua non for the purposes of Section 233(2) of the Ordinance. Controverting the department’s plea in this regard, learned counsel for the petitioner submitted that as per the agreement between PTV and WAPDA, no relationship of principal and agent existed between them as the latter was only providing services to the petitioner. Suffice it to say that the agreement does not indicate a relationship of agency between PTV and WAPDA, rather the wording employed therein suggests that it was a contract for the provision of services for which the latter was entitled to a ‘service fee’. As such, no relationship of principal and agent existed between PTV and WAPDA requiring the former to collect tax from the latter in terms of Section 233 supra. In this context, the judgment reported as The Ramkola Sugar Mills Co., Ltd Vs. The Commissioner of Income-Tax, Punjab and North-West Frontier Province Lahore (PLD 1955 Federal Court 418) referred to by the learned counsel for the respondent examined whether dividend income could be said to have been received by the assessee in British India within the meaning of Section 4(1) read with Section 14(2)(c) of the Income Tax Act, 1922 and is therefore distinguishable. Civil Petitions No.3551 to 3555 of 2015 -: 13 :- 8. Learned counsel for the respondents argued that by showing WAPDA’s service fee for collection of television license as an inter-account adjustment as opposed to an actual payment, PTV avoided withholding of advance tax, and according to the Income Tax Circular No.01 of 2009 dated 20.02.2009, it was clarified that such adjustments would be tantamount to actual payments thereby attracting Section 158(b) of the Ordinance. Apart from the fact that circulars issued by the department are not binding on this Court, the clarification which sought to curb the alleged menace mentioned in the said circular is against the clear mandate of Section 153(1)(b) read with Section 158 of the Ordinance as mentioned above in paragraph No.5 of this opinion, and therefore, does not provide any support to the case of the respondent. 9. The conclusion of the above discussion is that since PTV was not liable to deduct tax under Section 153(1)(b) of the Ordinance as it did not make any payments to WAPDA nor was the former required to collect advance tax under Section 233(2) thereof due to the absence of the relationship of agency with the latter, thus PTV did not fall within the garb of the exception of Section 21(c) supra and was entitled to claim deduction of service fee from its income as expenditure. The findings of all the forums below in this respect are liable to be set aside. 10. Further, there is an exception to the exception in Section 21(c) supra, that “unless the person has paid or deducted and paid the tax…” such that the payment for services or fee paid is not to be treated as expenditure unless the person has (i) paid; or (ii) deducted and paid the tax. Learned counsel for the respondent submitted that since PTV did not pay or deduct and pay the tax, thus it did not fall within the exception to the exception resultantly payment for services could not be treated as expenditure. He argued that the word ‘person’ in Section 21(c) supra only refers to withholding agents and since PTV did not pay the tax, thus WAPDA’s Civil Petitions No.3551 to 3555 of 2015 -: 14 :- service fee could not be treated as expenditure. To fortify his argument, he referred to Section 161 of the Ordinance according to which where a person fails to deduct tax from a payment, he shall be personally liable to pay the amount of tax to the Commissioner who may pass an order to that effect and proceed to recover the same. Further, that PTV was also liable to pay default surcharge under Section 161(1B) of the Ordinance, which provides that where at the time of recovery of tax under sub-section (1) it is established that the tax that was to be deducted from the payment made to a person or collected from a person has meanwhile been paid by that person, no recovery shall be made from the person who had failed to collect or deduct the tax but the said person shall be liable to pay default surcharge at the rate of eighteen per cent per annum from the date he failed to collect or deduct the tax to the date the tax was paid. He also argued that even if the amount of tax could be recovered from WAPDA under Section 162(1) of the Ordinance, sub-section (2) thereof does not absolve the person who failed to deduct tax (in this case PTV) from any other legal action in relation to the failure, or from a charge of default surcharge or the disallowance of a deduction for the expense to which the failure relates, as provided for under the Ordinance. Conversely, learned counsel for the petitioner submitted that if the tax is deducted and paid by PTV (which did not happen in this case) or WAPDA paid tax on the service fee, in either of the two situations, the former was entitled to deduct the said fee as its expenditure. According to him, the service fee retained by WAPDA was shown as its income and tax due has been paid thereupon. Since WAPDA cleared its tax liability, no loss has occurred to the revenue, hence invoking Section 21(c) supra was unjustified and at the most the provisions of Section 161(1B) supra could be applied and default surcharge imposed upon PTV due to delay in payment of tax, during the period when it was due and when WAPDA actually paid such amount. Civil Petitions No.3551 to 3555 of 2015 -: 15 :- Learned counsel stated that any other interpretation would result in double taxation which (interpretation) should be avoided unless the law very clearly so mandates. In this regard he relied upon the judgments reported as Pakistan Industrial Development Corporation Vs. Pakistan through the Secretary, Ministry of Finance (1992 SCMR 891) and Federation of Pakistan through Secretary M/o Petroleum and Natural Resources and another Vs. Durrani Ceramics and others (2014 SCMR 1630). He also referred to numerous judgments of this Court to argue that any uncertainty in the meaning of a taxing provision must be resolved in favour of the assessee. According to him, the claim of the department is not that since WAPDA did not pay tax, PTV should pay the same, rather that the latter failed to deduct tax that it was obliged to do and thus the service fee could not be treated as expenditure. He also stated that in identical circumstances, when the Gas Distribution Companies failed to deduct tax on the service charges retained by banks etc. for the collection of gas bills, the Tribunal allowed deduction of such expenditure from income under Section 21(c) supra in ITAs No.871/LB to 874/LB of 2008 [2010 PTD (Trib.) 930] and Sui Northern Gas Pipelines Ltd., Lahore Vs. Commissioner Income Tax, L.T.U., Lahore [2012 PTD (Trib.) 801]. 11. As discussed earlier, since no actual payment was made from PTV to WAPDA, therefore no deduction could have been made, resultantly category (ii) of ‘deducted and paid’ does not apply. Thus the question is whether the phrase “unless the person has paid the tax…” in category (i) refers only to PTV or includes WAPDA as well. It is pertinent to note that till 2003, only category (ii) existed. Thus “person…deducted and paid” clearly refers to withholding agents as it is only they who ‘deduct’ tax. Category (i) came into being by virtue of the Finance Act, 2003 (I of 2003) which inserted the words “paid or” in Section 21(c) supra. Prior to this amendment, the provision read “until the person has deducted and paid the tax…” Civil Petitions No.3551 to 3555 of 2015 -: 16 :- The amendment cannot be regarded as inconsequential, rather it has to be given meaning. By inserting the phrase ‘paid or’ the legislature has essentially widened the scope of the word ‘person’ to cover not only withholding agents but the person liable to pay the tax (the person on whose behalf advance tax is being paid). If it is presumed that both the expressions ‘paid’ and ‘deducted and paid’ relate only to one person (withholding agents), the amendment would have no implication whatsoever on the scope of the statutory provision and render the phrase ‘paid or’ completely redundant. It is settled law that redundancy cannot be attributed to statutory provisions (or any part thereof). In this respect, the following judgments are relevant:- Collector of Sales Tax and Central Excise (Enforcement) and another Vs. Messrs Mega Tech (Pvt.) Ltd (2005 SCMR 1166), Aftab Shahban Mirani and others Vs. Muhammad Ibrahim and others (PLD 2008 SC 779) and Messrs Master Foam (Pvt.) Ltd. and 7 others Vs. Government of Pakistan through Secretary, Ministry of Finance and others (2005 PTD 1537). Thus, WAPDA is covered by category (i) and if it discharged its tax liability regarding the service fee, PTV is entitled to deduct the amount of such fee as expenditure under Section 21(c) supra. 12. As regards Sections 161 and 162 of the Ordinance, as pointed out by the learned counsel for the respondent, we find that the wording of both sections reflects a presumption that a person was required to deduct and/or collect tax. As we have discussed in the earlier portion of this opinion, PTV could neither have deducted tax nor was it liable to collect tax from WAPDA under the law, thus Sections 161 and 162 supra, in the facts and circumstances, do not apply to the instant case. Thus, as we have held above, the exception itself does not apply to PTV therefore the question of the exception to the exception applying to it does not arise. 13. During course of the arguments, learned counsel for the respondent submitted that PTV did not produce any documentary Civil Petitions No.3551 to 3555 of 2015 -: 17 :- evidence to establish that WAPDA paid tax on the service fee retained by it. We directed learned counsel for the respondent to obtain a certificate from the Chairman, Federal Board of Revenue (FBR) in this respect. On one of the hearings, the learned counsel for the petitioner filed a certificate issued by one of the DISCOs namely, IESCO certifying that “from tax year 2009 to 2013, the commission deducted by IESCO from TV license fee paid to Pakistan Television Corporation was treated as one of the component of other income in IESCOS’s Revenue”. Learned counsel for the respondent also produced a certificate issued by the Chairman, FBR showing various charts relating to service fee deducted by the DISCOs viz. withholding tax collected and the net profit/loss shown by DISCOS viz. tax paid on that amount, in the tax years 2009 to 2013. It was also certified by the Chairman, FBR that “although withholding tax under section 153(1)(b) was not deducted/collected except Gujranwala Electric Supply Company (GEPCO). However, the DISCOS have discharged their normal tax liability on the basis of Return filed. Further examination of record reveals that the DISCOS were declaring losses whereas, had there been any tax withheld under section 153(1)(b) on service charges, the tax withheld would have been minimum Tax liability of the DISCOS. Therefore, the tax liability in cases of DISCOS showing losses has not been discharged.” 14. It is not clear from the above certificates, except for GEPCO (which has paid tax), how much tax has been paid by the DISCOs on the service fee retained by them. However, it is clear that they have mentioned the said amount as one of the components of their income and have discharged their ultimate tax liability on their total income, i.e. whenever there was a profit, they paid the tax due and in case of loss, they were obviously not required to pay tax. In either of the two eventualities, they have mentioned the service fee as part of their income. Therefore, PTV was entitled to treat WAPDA’s service fee as expenditure and reduce its (PTV’s) income accordingly. Civil Petitions No.3551 to 3555 of 2015 -: 18 :- 15. Learned counsel for the respondent also submitted that the tax on WAPDA’s service fee deductible by PTV in terms of Section 153(1)(b) supra, would be treated as minimum tax as per proviso (b) of Section 153(3) of the Ordinance. Again, the said proviso uses the phrase ‘tax deductible’ and not ‘tax collectable’. As we have already held above, PTV was not liable to deduct tax from WAPDA’s service fee as no actual payment was made by the former to the latter, thus proviso (b) of Section 153(3) ibid is irrelevant. 16. In the light of the above, these petitions are converted into appeals and allowed and the impugned judgment(s) are set aside. CHIEF JUSTICE JUDGE JUDGE Announced in open Court At Islamabad on 24th April, 2017 Approved for reporting Mudassar/

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN Civil Petitions No.357 and 358 of 2016 (On appeal from the judgment dated 3.12.2015 passed by the Lahore High Court, Multan Bench, Multan in W.P. No.7117 of 2011) Mst. Yasmeen Bibi ….Petitioner in both VERSUS Muhammad Ghazanfar Khan & others ….Respondents in both For the petitioner: Mr. Muhammad Waseem Shahab, ASC Syed Rifaqat Hussain Shah, AOR For the respondents: Mr. Saleem Ullah Ranazai, ASC Mr. Mehmood A. Sheikh, AOR Date of hearing: 28.4.2016 JUDGMENT Dost Muhammad Khan, J. — Leave to appeal is sought against the judgment of the learned single Judge in Chamber of the Lahore High Court, Multan Bench, Multan dated 3.12.2015. Arguments of the learned ASCs for the parties heard, impugned judgments of the Judge Family Court, the District Appeal Court and the one under consideration, of the Lahore High Court were carefully perused. 2. Brief facts of the controversy are that the petitioner, Mst. Yasmeen Bibi entered into wedlock with the respondent namely, Muhammad Ghazanfar Khan on 8.5.1994. The dower deed (Nikah Nama) was duly exhibited as Ex.PW-1/1 wherein, it was stipulated that dower in cash, amounting to Rs.1,00,000/- fixed, shall be payable on demand. CPs 357-358/16 2 3. In column No.17 it was further undertaken by the respondent that he would pay Rs.1000/- to the petitioner as pocket money, besides the land measuring 200 Kanal situated in Moza Amir Shah, Tehsil and District D.I. Khan shall also be transferred in the name of the petitioner-wife and she would be exclusively owner of the same. The parties were blessed with two male children however, during the happy wedlock, the marital relationship received a sudden serious jolt and the petitioner was deserted from the home. 4. During the above period a written divorce (Ex.P-5/1) was sent on her address, which she received. The divorce deed squarely shows that it was irrevocable divorce because it was pronounced on 1.3.2005 three times in the written divorce deed in presence of the witnesses. 5. It was in the above background that the petitioner was paddled up for litigation and she brought two separate suits, one for recovery of arrears of maintenance allowance, recovery of dower and the other for the recovery of dowry articles in the Family Court, Multan on 17.6.2005. While as a counterblast, the respondent, Muhammad Ghazanfar Khan instituted a suit on 18.11.2005 for restitution of conjugal rights on the plea that the divorce given, was revocable and was not final. It may be stated here that the respondent has also contracted second marriage in the meanwhile. 6. Keeping in view the sky high rocketing prices of daily commodities and needs of life, the Trial Court decreed the suit for arrears of maintenance @ Rs.10,000/- till the time of ‘Iddat’ and also decreed the suit for recovery of Rs.1,00,000/- as dower. Besides, the CPs 357-358/16 3 landed property described in the column of “Nikah Nama” was also decreed after holding that it was within the jurisdiction of the Family Court as the petitioner-plaintiff was residing at Multan within the jurisdiction of the Court. Further, decree for the recovery of dowry articles was also granted on the basis of evidence and because of the admission made by the respondent-defendant that the dowry articles were lying with him, albeit, these were earlier denied by him in his written statement. 7. The District Appeal Court while seized of the two cross appeals, modified the decree by setting aside the decree of the Judge Family Court with regard to the land measuring 200-K in District DI. Khan and also the decree with regard to the dowry articles. The order of the District Appeal Court is absolutely sketchy being bereft of reasons, much less cogent one and is also against the statutory law on the subject. 8. The learned Judge in Chamber of the Lahore High Court, Multan Bench vide impugned judgment, without going through the scheme of Family Court Act, amended upto date, jumped at the conclusion that all the issues, involved in the case were beyond the jurisdiction of the Family Court and in this regard the learned Judge without any care and caution to observe, relied on the view held in the case of Muhammad Akram v. Mst. Hajira Bibi and two others (PLD 2007 Lahore 515), which view is based on the judgment of the learned Single Judge of the Lahore High Court, Rawalpindi Bench where similar view was held in the case of Allauddin Arshad v. Mst. Nelofer Tareen(1984 CLC 3369). CPs 357-358/16 4 9. The preamble of the West Pakistan Family Court, Act, 1964 is to the following effect: “Preamble.– WHEREAS it is expedient to make provisions for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.” In the schedule amended upto date, the matrimonial disputes include: (i) dissolution of marriage [including Khula) (ii) dower (iii) maintenance (iv) restitution of conjugal rights (v) custody of children [and visitation rights of parents to meet them] (vi) guardianship (vii) gactitation of marriage (viii) dowry (ix) personal property and belongings of wife 10. Before promulgation and enactment of the Muslims Family Laws Ordinance, 1961, and the West Pakistan Family Court Act, 1964, such matters were dealt with by the Civil Courts or Criminal Courts with regard to the maintenance allowance, which was a cumbersome, lengthy and tiring procedure. For getting the final relief of her grievances, the wife had to wait for years for recovery of dower, maintenance and other ancillary matters. In cases of dissolution of marriage, it had to consume years and after getting the decree by that time, majority of the wives had to become grey haired and much beyond the remarriage-able age, beside incurring heavy expenses on getting the relief with regard to a meager amount of maintenance, dower etc. It was in the above background that the Legislature felt essential to provide for establishment of Family Courts to deal with all CPs 357-358/16 5 matrimonial disputes, mentioned above, in an expeditious manner, curtailing the life of litigation in such cases. To curb and suppress the mischief of delaying tactics on the part of unscrupulous husbands, several amendments were introduced to the Family Court Act, 1964. Some amendments bearing striking features may be cited below:- “S.12-A. Case to be disposed of within a specified period.. A Family Court shall dispose of a case, including a suit for dissolution of marriage, within a period of six months from the date of institution: Provided that where a case is not disposed of within six months either party shall have a right to make an application to the High Court for necessary direction as the High Court may deem fit.” “S. 17-A. This newly enacted provision was with the object to curb the mischief of delaying tactics and the Family Court was brought under obligation to pass interim order, directing the husband to pay interim maintenance allowance to the children and the wife after filing written statement or at any stage thereafter.” “The provision of S.21-A was also added to the Family Court Act, conferring power upon Family Court to preserve and protect any property, which is in dispute in a suit or any other property of a party to the suit for the future satisfaction of the decree.” To further accelerate and expedite the disposal of such cases, the District Appeal Court and the High Court, orders staying the proceedings before the Family Court, shall cease to be effective on expiring of thirty days time. Again, u/s 14, through amendment, it was made mandatory for the Court of Appeal to decide the case positively within four months. 11. Keeping in view the clear and manifest intention and object of the Legislature by drastically amending the provisions of the Family Court, Act, a Division Bench of the Peshawar High Court, after CPs 357-358/16 6 elaborately dealing with the same held that, “by now, the Family Court alone has exclusive jurisdiction to deal with all the matrimonial disputes of whatever nature, irrespective of territorial jurisdiction, provided that the Family Court where the wife resides shall have the jurisdiction to entertain such suits/claims [see. Muhammad Tariq v. Mst. Shaheen (PLD 2006 Peshawar 189)]. The view held by the Division Bench of the Peshawar High Court was not set aside by the Supreme Court thus, the same had attained finality and has got strong persuasive effects, which cannot be lightly ignored. 12. Keeping in view the agonies of the parties, particularly the wife, in matrimonial disputes to curtail the mischief of delay and to shorten the life of litigation in such cases, the Law & Justice Commission of Pakistan recommended to the Federal Government and all the Provincial Governments to establish Family Courts in each District and Tehsil Headquarter, which shall be preferably presided over by a female Judge so that the wives who are not well acquainted and familiar with the court proceedings are provided maximum protection and friendly environments. 13. To provide quicker relief to the wife, amendments were also made in the relevant provisions, where dissolution of marriage is sought on the basis of “Khula”, that on failure of conciliation efforts made by the Family Court at preliminary stage, the Family Court is invested with powers to dissolve the marriage there and then, without subjecting the wife to unending litigation. 14. It is demonstrably clear from these drastic amendments made in the Family Court Act including the new provisions added therein, that the Legislature was well aware of the miseries and plight CPs 357-358/16 7 of the wives, seeking relief through the obsolete law then in vogue thus, to minimize the same not only all matrimonial disputes were brought under one and the same umbrella of the Family Court but also provided for the target date, both for the Family Court and for the Appeal Court, by which such cases shall be decided conclusively. The jurisdiction and powers of all other courts thus stand excluded in these matters much less Civil Court therefore, pushing one or the other party to the Civil Court would be in clear violation of the mandatory provision of the law on the subject and would amount to reverse the efficacious remedies available to them under the new scheme of law. 15. In the case of dissolution of marriage on the basis of “Khula” a full Bench of the High Court in the case of Dr.Fakhr-ud v. Mst. Kausar Takreem and another (PLD 2009 Peshawar 92) while interpreting and construing all these new provisions introduced in the Family Court Act held that the relevant provisions of the Family Court Act, 1964 and that of Muslim Family Laws Ordinance, 1961 were ultra-vires to the extent that the wife has to return the dower in case of dissolution of marriage on the basis of “Khula” because under the Islamic injunction and according to the relevant verses of Holy Qura’an the wife has only to return the other benefits, given to her by way of gift etc. and not the dower amount because that is most essential consideration for valid contract of marriage being a civil contract, which cannot become binding and valid unless the consideration is paid. In the said judgment, many guidelines and principles have been laid down and till date the said judgment holds the field, which needs to be followed and regarded without any exception unless and until it is set aside by the Supreme Court. CPs 357-358/16 8 16. Under the provision of S.17 of the Act, 1964, all the provisions of Qanun-e-Shahadat Order, 1984 and that of Civil Procedure Code (except Ss.10 and 11) have been expressly excluded in its application to the cases tried by the Family Courts, thus, pushing the wives to the Civil Courts in view of the ouster clause in the above provisions, would be against the statutory law, binding in nature and any judgment of any Court in conflict of the statutory law, shall be ineffective to that extent, because, the latter occupies the high pedestal and unless it is declared ultra-vires of the Constitution, on the touchstone of the relevant provisions thereof, it shall have overriding and superimposing effects on the judgment of any Court. 17. As in this case the landed property, given to the wife, or the undertaking given in the “Nikah Nama”, to be transferred to her name is conclusive in nature and may be construed as a part of dower or a gift in consideration of marriage therefore, it was falling within the exclusive domain of the Family Court at Multan, as the wife was/is residing there, which has not been denied by the respondent, therefore, in our considered view, the District Appeal Court and the learned Judge in Chamber of the High Court, Multan Bench, Multan fell into legal error by holding the view to the contrary. Any departure made from the true object and spirit of law, enacted by the Legislature would defeat the same, which is not permissible under any cannon of justice and principle of law, nor the Courts are having any authority or powers to import their own opinion therein, defeating the clear intention of the Legislature and when the provisions of Ss. 16 to 20 of the CPC stand excluded from the proceedings before the Family Court then, the question of its territorial jurisdiction would never arise, provided that the Family Court where the wife resides, shall have the CPs 357-358/16 9 exclusive jurisdiction over all such matters for the sake of convenience because Rule 6 of the West Pakistan Family Court Rules, 1965 so provides. 18. In view of what has been discussed above, these petitions are converted into appeal and the same are allowed. However, the learned High Court has not decided the matter on merit, therefore, these cases are remanded to the learned High Court, Lahore, Multan Bench to decide the case in light of the above findings, observations and guidelines. Keeping in view the long history of these case, it is expected that the High Court would decide these cases on merit within a minimum possible time for the sake of substantial justice. 19. Before parting with this judgment, it is essential to state that these petitions are barred by 2 & 4 days respectively, however, keeping in view the important law points of public importance, involved and because right to dower, dowry articles and maintenance is involved, which cannot be lightly ignored, therefore, the delay of 2 and 4 days respectively, in filing these petitions is condoned. Appeals are allowed in the above terms. Judge Judge Islamabad, the 28th April, 2016 ‘Nisar/-‘ Approved For Reporting.

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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Mr. Justice Guizar Ahmed, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Sayyed Mazahar Ali Akbar Naqvi CIVIL PETITIONS NO.3587 TO 3589 OF 2020 Against the judgment dated 20.11.2020, passed by the Islamabad High Court, Islamabad in Writ Petitions No.327, 340 and 342 of 20201 Getz Pharma (Pvt) Limited, Karachi. (in all cases) ...Petitioner(s) Versus Muhammad Nafees and another. (in CP.3587 of 2020) Saeed Akhtar Awan and (in CP.3588 of 2020) another. Umar Farooq lilian and another. (in. CP.3589 of 2020) .Respondent(s) For the Petitioner(s) (in all Cases) For Respondent No.1 (in all cases) Date of Hearing Mr. Faisal Siddiqi, ASC Mr. Muhammad Bashir Khan, ASC 24.03.2021 ORDER GULZAR AHMED, CJ.- The petitioner-Getz Pharma (Pvt.) Limited, has filed these three petitions assailing the common judgment dated 20.11.2020, passed by the learned Single Judge of the Islamabad High Court, Islamabad (the High Court), whereby the three writ petitions filed by the petitioner were dismissed. C.P.No.3587 of 2020 2. Respondent No. 1-Muhammad Nafees (the respondent) was employed by the petitioner through letter dated 31.01.2005 as CJ's.358710 3589 of 2020 2- "Territory Manager/ Hearty". While working as a Senior Sales Manager (I.B. and A-5 North), through letter dated 04.07.2017, he gave one month's notice to the petitioner of his resigning from employment. Through letter dated 06.07.2017, the petitioner accepted the resignation of the respondent. The respondent filed an application under Section 15 of Payment of Wages Act, 1936 (the Act of 1936) before the Authority claiming following amounts as dues payable to him by the petitioner: - Gratuity: Rs. Provident Fund: Rs. Pay of July, 2017: Rs. Last claimed expenses Rs. which have not been paid. 15,50,670/- 7,70,000/- 1,22,100/- 65,000/- Total: Rs. 24,42,750/- The petitioner contested the matter before the Authority. The Authority vide its order dated 26.12.2019, allowed the application of the respondent and directed the petitioner to pay the following dues to the respondent: - Gratuity: Rs. 15,50,670/- Provident Fund: Rs. 7,70,000/- Pay of July, 2017: Rs. 1,22,100/- Total: Rs. 24,42,750/- The petitioner challenged the order of the Authority by filing of a writ petition in the High Court, which by the impugned judgment dated 20.11.2020, was dismissed. C.P.No.3588 of 2020 3. Respondent No.1-Saeed Akhtar Awan (the respondent) was appointed as "Territory Manager/Bravo" vide CJ's.358710 3589 of 2020 -3: V.. letter dated 10.12.2003. While working as a National Sales Manager (Alpha-11), he was issued a Show Cause Notice dated 30.11.2017. The respondent submitted his reply and thereafter, the petitioner tilde letter dated 30.11.2017, dismissed him from service. The respondent filed an application under Section 15 of the Act of 1936 before the authority, claiming the following amounts as dues payable to him by the petitioner: - Gratuity: Rs. 32,90,000/- Provident Fund: Rs. 10,00,000/- Pay of November, 2017: Rs. 2,25,100/- Last serving month Rs. 65,000/- expenses which have not been paid Total: Rs. 45,15,000/- The petitioner contested the matter before the Authority. The Authority vide its order dated 26.12.2019, allowed the application of the respondent and directed the petitioner to pay the following dues to the respondent:- Gratuity: Rs. Provident Fund: Rs. Pay of November, 2017: Rs. Last serving month Rs. expenses which have not been paid Total: Rs, 32,90,000/- 10,00,000/- 2,25,100/- 65,000/- 45,15,000/- The petitioner challenged the order of the authority by filing of a writ petition in the High Court, which by the impugned judgment dated 20.11.2020, was dismissed. C.P.No.3589 of 2020 4. Respondent No. 1-Umar Farooq Khan (the respondent) was appointed as "Territory Manager/ Bravo-11" vide order dated CPsJ587lo 3589 of2020 -4- - - 12.0 1.2005. While working as Senior Sales Manager (Bravo-11) Rawalpindi, he was issued a Show Cause Notice dated 30.11.2017. The respondent submitted his reply and thereafter, the petitioner vide letter dated 30.11.2017, dismissed him from service. The respondent filed an application under Section 15 of the Act of 1936 before the authority, claiming the following amounts as due to him payable by the petitioner:- 15,87,300/- 6,00,000/- 1,21,100/- 45,000/- Gratuity: Rs. Provident Fund: Rs. Pay of November, 2017: Rs. Last serving month Rs. expenses which have not been paid Total: Rs. 23,53,400/- The petitioner contested the matter before the Authority. The Authority vide its order dated 26.12.2019, allowed the application of the respondent and directed the petitioner to pay the following dues to the respondent: - Gratuity: Rs. 15,87,300/- Provident Fund: Rs. 6,00,000/- Pay of November, 2017 Rs. 1,21,100/- Total: Rs. 23,08,400/- The petitioner challenged the order of the Authority by filing of a writ petition in the High Court, which by the impugned judgment dated 20.11.2020, was dismissed. 5. Mr. Faisal Siddiqi, learned counsel for the petitioner has contended that the very applications filed by the respondents before the Authority were not maintainable for the reason that the respondents, in the first place, were not workmen and secondly, the respondent-Muhammad Nafees had resigned from service 2027). CPs.358710 3589 of 2020 under apprehension of his dismissal from service, as he was found to have formed a company by the name of Sun Health Care (Pvt.) Ltd. (Sun Health Care) doing business of pharmaceutical distributor/ seller and also got the said company registered with the petitioner and started making supplies of the petitioner's medicines to the said company. He contended that on the same ground of forming the very said company, Saeed Akhtar Awan and Umar Farooq Khan, respondents in Civil Petitions No.3588 and 3589 of 2020 were dismissed from service by letters dated 30.11.2017. He contended that being dismissed employees, the respondents were not entitled to grant of dues claimed by them and both the Authority in allowing the claims of respondents and I: the High Court in maintaining the orders of the Authority committed serious error of law. He further contended that the Gratuity and Provident Fund, in terms of Section 15 of the Act of 1936, are payable under the law and the respondents in their application before the Authority, have not mentioned at all under what law the claim for Gratuity and Provident Fund has been made by them. 6. Mr. Muhammad Bashir Khan, learned counsel for the respondents, on the other hand, has contended that for making of claim under Section 15 of the Act of 1936, before the Authority, the respondents were not required to be workmen and the only requirement was to show that they were employed persons with the petitioner. He relied upon a judgment of this Court in the case of Aurangzaib vs Medipak (Put.) Ltd. and others (2018 SCMR F- CPs.358710 3589 02020 -0- 7 While replying the Court's query, as to under what law the respondents have based their claim for payment of Gratuity and Provident Fund, learned counsel for the respondents contended that it was based upon the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (the Ordinance of 1968). 8. We have considered the submissions made by the leaned counsel for the parties and have also gone through the record of the case. 9. All the three respondents have filed their applications before the Authority under Section 15 of the Act of 1936. Subsection (1) of Section 15 is relevant to the controversy in hand, which is as follows: - "15. Claims arsing out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims.-- (1) The Provincial Government may, by notification in the official Gazette appoint any Commissioner for Workmen's Compensation or other officer with experience as a Judge of a Civil Court or as stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in the payment of wages, for non-payment of dues relating to provident fund or gratuity payable under any law,] of persons employed or paid in that area." The very provision, inter alia, contains that non-payment of dues relating to the Gratuity and Provident Fund, are those which are payable under any 'law'. 10. Learned counsel for the respondents has contended that the respondents have claimed Gratuity and Provident Fund under the Ordinance of 1968. In order to appreciate this very contention of the learned counsel for the respondents, it is CPs.358710 3589 of 2020 -7k. essential to examine the provision of the Ordinance of 1968. The Standing Order 12 (6) and (7) are as follows:- "12. Termination of employment.- ...... (6) Where a workman resigns from service or his services are terminated by the employer, for any reason other than misconduct, he shall, in addition to any other benefit to which he may be entitled under this Ordinance or in accordance with the terms of his employment or any custom, usage or any settlement or an award of a Labour Court under the Industrial Relations Ordinance, 1969 (XXIII) of 1969), be paid gratuity equivalent to [thirty days, wages, calculated on the basis of the [wages admissible to him in the last month of service if he is a fixed-rated workman or the highest pay drawn by him during the last twelve months if he is a piece- rated workman], for every completed year of service or any part thereof in excess of six months: Provided that, where the employer has established a provident fund to which the workman is a contributor and the contribution of the employer to which is not less than the contribution made by the workman, no such gratuity shall be payable for the period during which such provident fund has been in existence [* * * 1 1:] [Provided further that if through collective bargaining the employer offers and contributes to an "Approved Pension Fund" as defined in the Income Tax Ordinance, 2001 (XLIX of 2001), and where the contribution of the employer is not less than fifty per cent of the limit prescribed in the aforesaid Ordinance, and to which the workman is also a contributor for the remaining fifty per cent or less, no gratuity shall be payable for the period during which such contributions has been made.] (7) A workman shall be entitled to receive the amount standing to his credit in the provident fund, including the contributions of the employer to such fund, even if he resigns or is dismissed from service." 11. The reading of the above provisions shows that they apply to workman and Gratuity is payable to such a workman whose services have been terminated or who has resigned from employment. It provides for payment of Gratuity and lays down the manner in which it is to be calculated. It further provides that where the employer has established Provident Fund to which workman is a contributor and contribution of the employer is no less than the contribution of a workman, no such Gratuity shall CPs.358710 3589 of 2020 be payable during which the Provident Fund has remained in existence. The Provident Fund including contribution of employer is payable to a workman, who resigns or is dismissed from service. 12. The first moot question is whether the respondents are at all workmen under the Ordinance of 1968 to qualify them to be entitled to the benefit of Gratuity and Provident Fund under this Ordinance. Section 2(i) of the Ordinance contains the definition of the term "Workman", which is as follows: - "(i) "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or electrical work for hire or reward." 13. Muhammad Nafees, respondent in Civil Petition I No.3587 of 2020, was employed as Senior Sales Manager when he resigned from service. Saeed Akhtar Awan, respondent in Civil Petition No.3588 of 2020, was employed as National Sales Manager when he was dismissed from service. Umar Farooq Khan, Respondent in Civil Petition No.3589 of 2020, was employed as Senior Sales Manager when he was dismissed from service. 14. Learned counsel for the respondents has relied upon the case of Aura nczzaib (supra), wherein this Court was also dealing with a question as to whether petitioner Aurangzaib, who was a Senior Sales Representative, was at all a workman. After examining the job description of the petitioner and the law laid in Pakistan Tobacco Comyang Ltd. vs. Pakistan Tobacco Compang, Emplogees' Union, Dacca and others (PLD 1961 Supreme Court 403), Chairman, Brooke Bond (Pakistan) Ltd. ,Karachi vs. General Secretarq, Union Karkunane .Brooke Bond (Pakistan) Ltd., Rawalpindi (PLD 1969 Lahore 717), .Brooke Bond (Pakistan) Ltd. -1 CPs.358710 3589 of 2020 vs. Conciliator and 6 others (PLD 1977 Supreme Court 237) and Sued Matloob Hassan vs. Brooke Bond Pakistan Limited, Lahore (1992 SCMR 227), this Court has answered the question in J negative i.e. Senior Sales Representative will not come within the definition of the term "workman" as defined under the Ordinance - of 1968. 15. We may note that in the case of Pakistan Tobacco .1 Company Ltd. (supra) so also in Chairman Brooke Bond Pakistan I Ltd., case (supra), the question that came up for determination and decided by this Court was that whether a Salesman could be considered as a workman under the Industrial Relations Act, 1947, Industrial Dispute Ordinance, 1959 and Industrial Relations Ordinance, 1969. While in the case of Sued Matloob Hassan (supra) the Court considered the application of definition of term workman given in the Industrial Relations Ordinance, 1969 so also in the Ordinance of 1968. The Court dealt with the matter as follows:- 8. A plain reading of the above subsection (1) of section 25-A of the Industrial Relations Ordinance shows that a worker or a workman, who falls within the definition given in above clause (xxviiij of section 2 of the Ordinance can invoke the above provision of the Industrial Relations Ordinance in respect of any right guaranteed or secured to him by or under: - (i) any law; or (ii) any award; or (iii) any settlement for the time being in force. Whereas, the above clause (3) of Standing Order 12 contemplates that the services of a workman shall not be terminated nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing containing the reason for the action. It further provides that in case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance :1 '2 CPs.3587 to 3589 of 2020 with the provisions of section 25-A of the Industrial Relations Ordinance and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance. In other words, the above clause (3) of Sanding Order 12 incorporates the provisions of section 25-A of the Industrial Relations Ordinance by reference for the purpose of enabling a workman as defined in clause (i) of section 2 of the Ordinance to get redress against termination of his services or removal or retrenchment, discharge or dismissal, in violation of above clause (3) of the Standing Order 12. 9. We may observe that as pointed out hereinabove, a workman falling within the definition of "workman' and "worker" given in clause (xxviii) of section 2 of the Industrial Relations Ordinance can press into service the provisions of section 25-A for the enforcement of any right guaranteed or secured to him by any law or any award or settlement. If the right which is sought to be enforced, is guaranteed or secured by the provisions of the Industrial Relations Ordinance or by the terms of an award or settlement, it is enough that the workman comes within the ambit of the definition given in the above clause (xxviii) of section 2 of the Industrial Relations Ordinance, but in case, the claim of the workman concerned is founded on a provision of any other law, in that event if such law provides definition of a "workman", he should besides being covered by the above definition provided for in clause (xxviii) of section 2 of the Industrial Relations Ordinance should also be covered by the definition given in the relevant law. For example, if a workman seeks the enforcement of the rights guaranteed under the various provisions of the Standing Orders Ordinance, he should also fall within the definition of the "workman" given in clause (i) of section 2 of the Ordinance. However, in case of termination of employment in violation of clause (3) of Standing Order 12 as pointed out hereinabove, it is sufficient that the workman concerned falls within the definition of the "workman" given in clause (i) of section 2 of the Ordinance and he need not be covered by the definition of the "workman" and "worker" given in clause (xxviii) of section 2 of the Industrial Relations Ordinance." The Court also dealt with the observation made by Cornelius, CJ., as his lordship then was, in Pakistan Tobacco Company Ltd's case (supra) which is as follows: - "I consider that it admits of no doubt, that persons who are engaged exclusively in the field of distribution through proper agencies of the products of the Company, are not assimilable either to the group of workers whose manual labour contributes to that product, or those of the clerical establishment who perform the paper work connected with the operations of the Company. The work of salesman is in a wholly I 1 CPs.358710 3589 of 2020 -11 U different category from manual work or clerical work, and I feel no hesitation in agreeing with the decision of the Tribunal upon this point, namely, that salesmen do not fall within the definition of "workmen"." Thus, the consensus opinion of the Court in the cited cases is that salesman does not fall within the ambit of the term workman. 16. On reading of the judgment of this Court in Aurangzaib 's case (supra), it is quite evident that this Court has been taking consistent view that a salesman by very nature of his work is not a workman and does not fall within the ambit of the term workman. In Sued Mat bob Hassari's case (supra), a 5- Member Bench of this Court has in clear terms held that on the basis of admission and keeping in view the duties of the appellant, i.e., a salesman did not predominantly involve manual or clerical work and as such was not considered to be a workman within the meaning of Ordinance of 1968. 17. Now coming to the present case, the application under Section 15 of the Act of 1936, filed by all the three respondents before the Authority, the respondents have claimed that they have joined the petitioner's company as a Territory Manager. In para-5 of their applications, the respondents have averred that according to the judgment of the Supreme Court of Pakistan and Labour Laws, the petitioner is liable to pay damages and interest at bank rate to the applicants till date of payment. The respondents have not at all claimed themselves or pleaded in their applications before the Authority that they were workmen. The petitioner in its reply/written statement has taken a specific plea that I CPs.35871o3589o12020 -12- respondents were not employed as worker or workman and that they were employed as Territory Manager and at the time of resignation/ dismissal of the respondents, they were working as National Sales Manager/Senior Sales Manager and were employed on contractual terms and on managerial positions 18. It seems from the record and also from the order of the Authority that no evidence in the case was led by the parties. We note that where the respondents themselves claim the dues of Gratuity and Provident Fund and that too, under the Ordinance of 1968, on the principle as laid down by this Court in Stied Matloob Hassan's case (supra), it was incumbent upon the respondents to have alleged or taken a specific plea in their applications before the Authority that they are workmen under the Ordinance of 1968 and in case where the employer disputes and denies such allegation/ plea, the burden to prove the fact that respondents were employed as workmen will be upon the respondents, and after they have discharged such burden by leading of positive evidence, the burden will shift upon the petitioner/ employer to establish the fact that the respondents were not workmen. In the absence of the evidence from the side of the respondents and on the basis of pleadings of the parties, as stood before the Authority, can it be said that the respondents have succeeded in establishing the fact that they were workmen under the Ordinance of 1968. The answer will be altogether in negative, for there is neither any allegation or plea in the applications of the respondents before the Authority that they were workmen under the Ordinance of 1968 nor they recorded their evidence before the Authority to establish CPs.358710 3589 of 2020 - 13 - the fact that they were workmen and performing manual or clerical work in terms of Section 2(i) of the Ordinance of 1968. 19. The other aspect that was emphasised by the learned counsel for the respondents is that in order to avail the benefit of payment of dues of Gratuity and Provident Fund, the respondents were not required to establish that they were workmen and it was sufficient for them to have established that they were employed persons. This very submission of the learned counsel for the respondents fails to take into consideration that where an employed person has to claim his dues of Gratuity and Provident Fund under Section 15 of the Act of 1936, the dues of Gratuity and Provident Fund have to be those, which are payable under any "law". The word payable under any law, in our view, could not be anything else than the law as made by the competent legislative authority and will not stretch to the dues of Gratuity and Provident Fund payable under the contract. The respondents, I by virtue of their contract of employment, as placed on record, were entitled to be paid Gratuity and Provident Fund. This contract of employment of the respondents with the petitioner could not be termed as a law but at best could be considered as to whether it is enforceable in law or not. 20. On the basis of the above discussion, we are of the considered view that the respondents have failed miserably to establish their claim that they were entitled to the grant of Gratuity and Provident Fund as claimed by them in their applications before the Authority. dismissed. Bench-I Islamabad 24.03.2021 'APPROVED FOR REPORTING' Rabbani/ RIEF DGE CPs.3587to 3589 of 2020 - 14- e 21. We, therefore, convert all the three civil petitions into appeals and allow the same by setting aside the orders dated F 26.12.2019 of the Authority and the impugned judgment 20.11.2020, where it allows granting of Gratuity and Provident Fund to the respondents and claim of the respondents to the extent of payment of Gratuity and Provident Fund is accordingly

{'id': 'C.P.L.A.3587_2020.pdf', 'url': ''}

{'id': 'C.P.L.A.3587_2020.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITIONS NO.3604 AND 3605 OF 2018 (On appeal against the judgment dated 27.07.2018 of the Federal Service Tribunal, Islamabad passed in Appeals No.2198(R)CS/2015 and 2199(R)CS/2015) Saboor Khan In CP 3604/2018 Kifiat Ullah In CP 3605/2018 …Petitioner(s) VERSUS Chairman WAPDA, WAPDA House, Lahore and others …Respondent(s) (In both cases) For the Petitioner(s): Mr. Muhammad Aftab Alam Rana, ASC Syed Rifaqat Hussain Shah, AOR (In both cases) For the Respondent(s): Not represented (In both cases) Date of Hearing: 27.01.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- These petitions under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, have been filed calling in question the consolidated judgment dated 27.07.2018 passed by the Federal Service Tribunal, Islamabad whereby the Service Appeals filed by the petitioners were disposed of while converting the imposed penalty of ‘dismissal from service’ into ‘removal from service’. 2. Briefly stated the facts of the matter are that the petitioners were working as regular Security Guards in the respondent Department at Dasu Hydropower Project. On 03.07.2015, they while armed with sticks and rods, beaten the Security Inspector namely Arban Ali and caused several injuries to him. This led to issuance of explanation dated 07.07.2015 on the allegation of attempt to murder, which was replied by the petitioners and they denied the allegation leveled against them. Thereafter, a show cause CIVIL PETITIONS NO.3604 AND 3605 OF 2018 -: 2 :- notice was issued on 09.07.2015. An inquiry was also conducted wherein the petitioners were found guilty of the charge. Finally, the departmental authority imposed a major penalty of dismissal from service upon the petitioners on 27.08.2015. The petitioners preferred departmental appeals dated 29.08.2015 but even prior to final adjudication, they filed Service Appeals No. 2198(R)CS & 2199(R)CS of 2015 before the Federal Service Tribunal, Islamabad, which have been disposed of vide impugned judgment dated 27.07.2018 and the penalty of ‘dismissal from service’ has been converted into ‘removal from service’. Hence, these petitions seeking leave to appeal. 3. Learned counsel for the petitioners inter alia contended that no regular inquiry was conducted by the Department before imposing major penalty of dismissal from service, which is against the settled principle of law; that instead of regular inquiry, only a fact finding/informal inquiry was conducted on the basis of which major penalty could not be awarded; that neither the injured appeared before the Inquiry Committee nor his medical report was produced before the Committee; that without recording of cogent and concrete evidence, the learned Tribunal could not pass the impugned judgment and the same being not tenable in law, may be set aside. 4. We have heard learned counsel for the petitioners and have perused the available record. 5. During the departmental proceedings, both the petitioners had submitted an affidavit on 27.07.2015 wherein they have admitted the incident. However, they took the stance that it was Arban Ali, who hurled abuses to them and pointed a rifle towards them, upon which they gave a punch to him. This story of the petitioners appears to be an afterthought, because, if this was the position, why they did not make a complaint against the said Arban Ali and kept mum for four days until the explanation was sought from them. During the course of arguments, the main emphasis of the learned counsel was that no regular inquiry was conducted and the inquiry which was conducted was the informal one. However, we do not agree with the learned counsel. The inquiry committee was duly constituted under Section 6 of the WAPDA (Efficiency & Discipline) Rules, 1978, whereby a procedure has been prescribed when an inquiry officer or an inquiry committee is to be appointed. It would be CIVIL PETITIONS NO.3604 AND 3605 OF 2018 -: 3 :- in fitness of things to reproduce the said Section, which reads as under:- “6. Procedure to be observed when an Inquiry Officer or an Inquiry Committee is to be appointed Where an Inquiry Officer or an Inquiry Committee is to be appointed, the competent authority shall:- (1) Frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration. (2) Require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day of charge has been communicated to him, to put in a written defence and to state at the same time whether he desires to be heard in person. (3) The Inquiry Officer or the Committee, as the case may be, shall inquire into the charge/or circumstances and may examine such oral or documentary evidence in support of the charge/plea or in defence of the accused, as may be considered necessary, and the accused shall be entitled to cross-examine the witness evidence against him. (4) The Inquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing. However, every adjournment with reasons therefore shall be reported forthwith to the competent authority. Normally, no adjournment shall be for more than a week. (5) Where the Inquiry Officer or the Committee, as the case may be, is satisfied that the accused is hampering, or attempting to hamper the progress of the inquiry, he or it shall administer a warning and if thereafter he or it is satisfied that the accused is acting in disregard of the warning, he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as he or it thinks best suited to do substantial justice. (6) The Inquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the competent authority submit his or its findings and the grounds thereof to the competent authority.” 6. The inquiry was conducted by the Deputy Director Security of Dasu Hydropower Project wherein two Junior Engineers were also members. The report categorically shows that four witnesses appeared against the petitioners and while recording the statement of each witness, ample opportunity was given to the petitioners to cross-examine them but they declined to cross-examine CIVIL PETITIONS NO.3604 AND 3605 OF 2018 -: 4 :- the witnesses. The perusal of the record clearly reflects that following the procedure laid down in Section 6 of the aforesaid Rules, all the legal requirements were fulfilled. The petitioners were issued explanation on 07.07.2015 and thereafter show cause notice/charge sheet on 09.07.2015 to which they replied. During the inquiry proceedings, the requisite material was considered and the petitioners were given full opportunity to cross-examine the witnesses deposing against them. Even otherwise, if the Competent Authority feels that there is no need of inquiry in a case, it is fully competent to dispense with the inquiry in terms of Rule 5(iv)(b) of the WAPDA (Efficiency & Discipline) Rules, 1978. Besides, there is another aspect of the matter. Admittedly, the petitioners had filed Service Appeals before the Federal Service Tribunal without awaiting for the prescribed period of 90 days period after filing of departmental appeals, which even without touching the merits of the case rendered their Service Appeals incompetent in view of the specific bar contained in Section 4(1)(a) of the Service Tribunal Act, 1973. The said Section reads as under:- “4(1)(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred.” 7. This Court in an unreported judgment dated 06.02.2017 passed in Civil Petition Nos. 3311 to 3313 of 2016 etc has held as under:- “…But what exposes the impugned judgments to serious comment is entertainment of the appeals by the Service Tribunal in violation of the proviso (a) to Section 4 of the Service Tribunals Act, 1973, which clearly and unambiguously provides that no appeal would lie to the Tribunal unless the aggrieved civil servant has preferred an appeal, application for review or representation to the departmental authority. The respondents according to the available record preferred representations to the departmental authority and then appeal before the Tribunal, but without waiting for an order on their representations or expiration of 90 days. Appeals in the circumstances being incompetent were liable to be dismissed on this score alone notwithstanding their merits if any. CIVIL PETITIONS NO.3604 AND 3605 OF 2018 -: 5 :- 8. In view of the above, when the learned Tribunal itself had taken note of the afore-referred judgment of this Court in paragraph 11 of the impugned judgment, it ought not to have entertained the amended appeals. So far as the argument of learned counsel for the petitioners that neither the injured appeared before the Inquiry Committee nor his medical report was produced before the Committee is concerned, it is suffice to state that it is only in the criminal proceedings that the injured has to appear whereas in the present case disciplinary proceedings were being carried out against the petitioners which go side by side, therefore, there was no need to join the injured with the proceedings. The petitioners being security guards were supposed to perform duties in a disciplined manner. Due to their conduct, the trust and faith showed by the employer is shattered resulting in loss of confidence. The manner in which the petitioners, on whom confidence was reposed to give protection and to perform duty in a disciplined manner, attacked on their Supervisor repels any consideration of treating them leniently. Article 212(3) of the Constitution of Islamic Republic of Pakistan specifically mandates that “an appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.” No such question of law of public importance within the meaning of aforesaid Article 212(3) of the Constitution has been raised by the learned counsel for the petitioners, calling for interference by this Court. 9. For what has been discussed above, these petitions having no merit are accordingly dismissed and leave to appeal is refused. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 27th of January, 2021 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 367-K OF 2016 (On appeal against the judgment dated 03.06.2016 passed by the High Court of Sindh, Sukkur in C.P. No. D-2199/2016 Haji Khan Bhatti … Petitioner VERSUS Province of Sindh through Provincial Election Commission and others … Respondents For the Petitioner: In person For Govt. of Sindh: Mr. Adnan Karim, Addl. A.G. Mr. Abdullah Hanjiah, Law Officer, ECP Date of Hearing: 02.08.2016 JUDGMENT FAISAL ARAB, J.- The petitioner was one of the candidates in the Local Government elections nominated on a reserved seat for District Council, Naushero Feroz. Upon scrutiny, the nomination papers submitted by the petitioner on 07.05.2016 were rejected by the Returning Officer vide order dated 11.05.2016 for the reason that the petitioner was an enrolled voter on the electoral rolls of the Municipal Committee, Moro, which is a Council located in the urban area of District Naushero Feroz and therefore cannot be nominated on a reserved seat of the District Council, which is constituted for the rural area of District Naushero Feroz. Against such decision, the petitioner appealed before the Appellate Authority. Before the Appellate forum, the petitioner’s case was that Civil Petition No. 367-K/2016 2 to contest election on a reserved seat of District Council, the provisions of Sindh Local Government Act, 2013 impose no restriction that a candidate must be an enrolled voter of the rural area of the District. Petitioner’s appeal before the Appellate Authority was dismissed on the same ground that prevailed with the Returning Officer i.e. the petitioner was not enrolled as a voter in any electoral roll of a Ward that falls in the rural area of the District Naushero Feroz. In reaching such conclusion, the Appellate Authority placed reliance on the provisions of Section 35 (1) (c) of the Sindh Local Government Act, 2013. Having failed to seek any relief from the Appellant Authority, the petitioner filed Constitution Petition before the High Court of Sindh. The High Court in its decision kept the distinction between the urban and rural areas of the District and held that the petitioner, a voter of a Council of an urban area, was not eligible to contest election on a reserved seat of District Council, which is constituted for the rural area only. Based on such reasoning the High Court dismissed the Constitution Petition vide impugned judgment dated 03.06.2016. Hence, this petition for leave to appeal. 2. The petitioner, who appeared in person, argued that irrespective of the fact that he is an enrolled voter of the Municipal Committee, Moro which is a Council constituted for urban area of District Naushero Feroz, he stills qualifies as no provision of Sindh Local Government Act, 2013 imposes restriction that a candidate for a reserved seat of District Council must be enrolled as a voter on the electoral roll of a Council meant for the rural area of the District. According to him, a candidate would still qualify to contest elections for such seat if he is enrolled as a voter on the electoral rolls of any Civil Petition No. 367-K/2016 3 Council located in the entire District, be it in rural area or urban. We proceed to examine the issue raised before us by the petitioner. 3. The very purpose of establishing local government system is to extend representation of the people in the governance to the grass root level. For establishing local government system in Sindh, the Government has been empowered under Section 15 of the Sindh Local Government Act, 2013 to categorize a District into urban and rural areas, if it is not already so categorized. The urban area of a District is divisible into various Councils such as a Union Committee, a Town Committee, Municipal Committee, a Municipal Corporation and a Metropolitan Corporation, depending upon the municipal status of its urban areas. The rural area of a District is divided into Union Councils for each Union and a District Council. After dividing a District into various Councils as aforesaid, each Council is assigned a particular local area. The local area of each Council is then further divided into Wards, each having its definite locality. The voters of each Ward of a Council constitute its basic electoral unit, who elect members from their respective Wards on the basis of adult franchise. Apart from electing members directly, the Sindh Local Government Act, 2013 also provides that certain Councils would have reserved seats as well. Such Councils are Town Committees, Municipal Committees, District Municipal Corporations, Municipal Corporations, Metropolitan Corporations and District Councils. The members on the reserved seats of such Councils are to be elected by the members who have been directly elected on such Councils as these directly elected members constitute the Electoral College for electing members on the reserved seats. Civil Petition No. 367-K/2016 4 4. Chapter V of the Sindh Local Councils (Election) Rules, 2015 deals with the elections to the reserved seats of the Councils. Rule 50(1) of the said Rules prescribes the basic requirement for nominating a candidate for electing him as a member of the Council on its reserved seats. It reads; “Any member of the electoral college may nominate and any other such member may second any candidate whose name is entered in the electoral rolls and is eligible for the election to the reserved seats.” It can be seen from the provisions of Rule 50(1) that it is a fundamental requirement that only such person can be nominated for the reserved seats of a Council, who is enrolled as a voter in the electoral rolls. The question that has come to be addressed by this Court is that where a candidate intends to contest election on a reserved seat of a District Council then his name ought to be entered in which electoral rolls in order to make him eligible for nomination? Is it the electoral rolls of the entire Revenue District, including its urban as well as rural areas or only the electoral rolls of rural area for which a District Council is constituted in a revenue District? Section 15(b) (ii) of Sindh Local Councils Act, 2013 provides that a District Council is to be constituted for rural area of a District. This question can be answered by interpreting the provision of Section 35 (1) (c) of the Sindh Local Government Act, 2013. Section 35 (1) (c) of the Sindh Local Government Act, 2013 provides that a person shall not be qualified to be elected or chosen as a member of the Council unless he is enrolled as a voter in the electoral rolls of the Council or Ward. When Section 35 (1) (c) states that a candidate has to be enrolled as a voter in the electoral rolls of the Council or Ward, it uses two separate terms i.e. ‘the Council’ as well as ‘Ward’. In our view these two terms have been Civil Petition No. 367-K/2016 5 used to deal with two distinct situations. Where a member for a Council is to be directly elected from a Ward on the basis of adult franchise of the electors then the candidate has to be enrolled as a voter of that particular Ward, otherwise his candidature would be liable to be rejected, hence the term ‘Ward’ has been used in clause (c) of Section 35 (1) for such candidates. On the other hand, where a member is to be elected for a reserved seat of a particular Council by its electoral college then the requirement is that such candidate must be enrolled as a voter from any of the Wards falling within the local limits of such Council. It is for this reason that the term ‘the Council’ has also been used in Section 35(1) (c). Mere use of the term ‘Ward’ for the election on reserved seat would not have been adequate as the members on the reserved seats of a Council are not elected by any particular Ward but by the electoral college of the Council, which comprise of its directly elected members. Section 35(1) (c) clearly deals with these two different situations. 5. From the above discussion it is evident that the mandate of Section 35(1) (c) of the Sindh Local Government Act, 2013 is that where a member is to be directly elected from a Ward of a Council then unless he is an enrolled voter of that very Ward, he cannot be a candidate from that particular Ward, the reason being that in case of direct election on the basis of adult franchise, every Ward of a Council should have its own representative on the Council. This is precisely the object with which Wards have been created. On the other hand, where a member is to be indirectly elected on a reserved seat of a Council by its electoral college then unless he is an enrolled voter of any of the Wards falling within the local limits of that Council, he would not be qualified to contest the election, the reason Civil Petition No. 367-K/2016 6 being that every member who is to be indirectly elected on a reserved seat of a Council should be an enrolled voter of the area which falls with the constituency of that very Council. The representation on a reserved seat has to be from the local limits of that very Council and not from outside its area. No person can seek his election on a reserved seat of a Council unless he is enrolled as a voter in the electoral rolls of any of the Wards that fall within the limits of such Council. One who is not enrolled as a voter in any locality of Council’s constituency, cannot be regarded as a true representative of that Council and, therefore, has not been allowed to be a candidate for its reserved seat by virtue of the provisions of Section 35(1)(c) of the Sindh Local Councils Act, 2013. Thus where a member is to be directly elected from a Ward, his enrollment in that particular Ward is a mandatory requirement and where a member is to be indirectly elected, his enrollment in the local limits of that very constituency of the Council is a mandatory requirement. As the constituency of a District Council under Section 15 (b) (ii) of Sindh Local Government Act, 2013 is rural area of a District only and not beyond that, a candidate on its reserved seat must be an enrolled voter of any of the Wards falling in the rural area of the District. Only such candidate would qualify to contest election on a reserved seat and not the one who is an enrolled voter of a Council from urban area of the District. The electoral college of any Council does not enjoy the liberty to nominate a person on its reserved seat who is not an enrolled voter of any of the Wards falling within the local limits of such Council. Any nomination that is contrary to such a mode, would be in breach of the provisions of Section 35 (1) (c) read with Rule 50(1) of the Sindh Local Councils (Election) Rules, 2015 and would thus invalidate his candidature. Civil Petition No. 367-K/2016 7 6. We conclude that the petitioner, being a voter of Municipal Committee, Moro, District Noushero Feroz, which is a Council in urban area of the District, on account of the restriction contained in Section 35 (1) (c) of the Sindh Local Government Act, 2013 cannot stand as a candidate on the reserved seat of District Council, Noushero Feroz, which under Section 15 (b) (ii) of Sindh Local Government Act, 2013 is constituted purely for rural area of a District. This petition is therefore dismissed and leave refused. JUDGE JUDGE Karachi, the Announced on 25.08.2016 by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram Civil Petition No. 367-K/2016 8 Section 15 of the Sindh Local Government Act, 2013, which reads as under:- “15. As soon as may be, the following Councils shall be constituted - (a) in urban area – (i) a Union Committee for each ward in the Corporation; (ii) a Town Committee for each Town comprising of single member of ward; (iii) a Municipal Committee for each Municipality comprising of single member of ward: (iv) a Municipal Corporation for each city comprising of Union Committees; (v) a District Municipal Corporation for each district of the Metropolitan city; and (vi) a Metropolitan Corporation for each Metropolitan city; (b) in rural area- (i) a Union Council for each Union; (ii) a District Council for each District; Provided that for the districts in Karachi Division there shall be one District Council comprising of such areas of said districts.” Section 35 (1) (c) reads as under:- “35. Qualifications for candidates as members. (1) A person shall not be qualified to be elected or chosen as a member of the Council unless- (a) …………………………………………………………….. (b) …………………………………………………………….. (c) he is enrolled as a voter in the electoral roll of the Council or ward”.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SYED HASAN AZHAR RIZVI MR. JUSTICE IRFAN SAADAT KHAN CIVIL PETITION NO.3718 OF 2023 (Against the order/judgment of the Lahore High Court, Lahore dated 21.09.2023 passed in Writ Petition No.59365/2023) Mst. Qurat-ul-Ain …Petitioner VERSUS Station House Officer, Police Station Saddar Jalalpur Jattan, District Gujrat & others …Respondent(s) For the Petitioner : Mr. Iftikhar Ahmad Bashir, ASC a/w Petitioner-in-person For Respondent No.3 : Mr. Zafar Iqbal Klasoon, ASC (via V.L. Lahore) For Respondent (Gov.) : Mr. Baleeghuz Zaman, Add’l AG Pb. Other Respondents : Nemo Date of Hearing : 13.12.2023 JUDGMENT IJAZ UL AHSAN, J-. On conclusion of the hearing, this Petition was converted into an Appeal and allowed in the following terms: “For detailed reasons to be recorded later, this petition is converted into an appeal and allowed in the following terms: 1. The impugned judgement/order of the Lahore High Court, Lahore dated 29.09.2023 passed in WP No.59365/2023 is set aside. 2. The concerned Guardian Court/Family Court, Gujrat seized of Guardian Petition titled “Qurat ul Ain v. Biban Bibi etc.” shall ensure that the custody of the child is restored to the mother within one week of receipt of a certified copy of this order. CIVIL PETITION NO.3718 OF 2023 -:2:- 3. The Office shall ensure that a certified copy of this Order is sent to and received by the concerned Guardian Court/Family Court, Gujrat seized of Guardian Petition titled “Qurah-tul-Ain v. Biban Bibi etc.” within one week. 4. The Guardian Court shall proceed with the pending Guardianship petition with all due diligence and conclude the matter as expeditiously as possible strictly in accordance in law.” Our detailed reasons are set out herein below. 2. Bibi (“Respondent No.3”) filed a writ petition before the Lahore High Court, Lahore seeking the recovery of her granddaughter Haseeba Noor, a four-year-old minor (the “Minor”) from the “improper custody” of her mother Mst. Qurat-ul-Ain (the “Petitioner”) and the Petitioner’s husband Nasir Bashir. It was averred in Respondent No.3’s writ petition that her son i.e., Waheedullah had married the Petitioner and from this union, the minor was born. The marriage did not last and ended in divorce. Waheedullah was settled abroad and the Petitioner had contracted a second marriage while retaining custody of the minor. This second marriage had disentitled the Petitioner from retaining custody of the minor since her continued presence in a Ghair Mehram’s house was impermissible under the law and detrimental to her welfare. In the absence of a speedy and efficacious remedy and since her father Waheedullah was not in the country, Respondent No.3 filed the writ petition seeking production of the minor before the High Court and prayed that the minor’s custody be handed over to her paternal grandmother i.e., Respondent No.3. The High Court on 18.09.2023 directed that the minor be produced before the Court on the next date of hearing i.e., 21.09.2023. CIVIL PETITION NO.3718 OF 2023 -:3:- In compliance of the said order, the concerned Station House Officer produced the minor before the High Court on 21.09.2023. After hearing the parties, the High Court through the impugned order/judgement ordered that the custody of the minor be handed over to Respondent No.3 as an interim arrangement and that the concerned Guardian Court shall decide the permanent custody of the minor strictly in accordance with law. Aggrieved by the High Court’s decision, the Petitioner assailed the impugned judgement/order before this Court. 3. The learned counsel for the Petitioner contended that the High Court, in its constitutional jurisdiction, had effectively decided the matter of custody of the minor even though an alternative and efficacious remedy was available to Respondent No.3 in the form of a guardian petition under the Guardian and Wards Act, 1890 (the “GW Act”). He also contended that the father of the minor was living in Spain, had consistently failed to pay any maintenance for the minor’s upkeep and had even contracted a second marriage himself. He therefore maintained that the sole ground on which the High Court had handed over custody of the minor to Respondent No.3 was that she had contracted a second marriage. He submitted that a second marriage is not an automatic disqualifier under the law insofar as the custody of a child is concerned. Reliance on this aspect was placed on a judgement of this Court reported as Muhammad Owais v. Nazia Jabeen (2022 SCMR 2123). He prayed that the impugned CIVIL PETITION NO.3718 OF 2023 -:4:- order/judgement of the Lahore High Court be set aside and custody of the minor be handed over to the Petitioner till a decision is made by a Court of competent jurisdiction. 4. The learned counsel for Respondent No.3, on the other hand, defended the impugned order/judgement and submitted that in the exercise of its constitutional jurisdiction, the High Court had ample powers to hand over custody of a minor to anyone if it was in the interest of the said minor. He also pointed out that the High Court’s arrangement was purely temporary and that the High Court had expressly held that its decision would be subject to the decision of a Court of competent jurisdiction. 5. We heard the learned counsel for the parties and went through the record. 6. Although the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) does away with the Latin terminology, Article 199 of the Constitution confers on the High Courts the power to pass certain orders classically and colloquially referred to as writs of Habeas Corpus, Mandamus, Quo Warranto, Certiorari, and Prohibition. 7. In her writ petition before the High Court, Respondent No.3 made the following prayer: “In view of the above submissions, it is most humbly prayed that this petition may kindly be accepted and the detenue/minor granddaughter of petitioner namely Haseeba Noor, daughter of Waheedullah aged 4 years my (sic) please be ordered to be recovered from the improper custody of respondents No.2 and 3 through Respondent No.1 and after production of minor before this Honourable Court her custody CIVIL PETITION NO.3718 OF 2023 -:5:- be handed over to the petitioner in the welfare of minor and also in the best interest of justice, equity and fair play. Any other relief which this Honourable Court deems fit and proper in the circumstances of the case may also kindly be granted.” 8. A perusal of Respondent No.3’s writ petition and her prayer reveals that she had sought, in essence, a writ of Habeas Corpus for the production of the minor. The relevant portion of Article 199 which deals with the said writ is reproduced below for ease of reference: “199. Jurisdiction of High Court (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, — (a) … (i) … (ii) … (b) on the application of any person, make an order — (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) … (c) …” (Underlining is ours) 9. It is important to note that Article 199 starts with the phrase: “Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, …” Therefore, the High Court’s constitutional jurisdiction is subject to the satisfaction that no other adequate remedy is provided by law. 10. Habeas Corpus has been defined in various ways over the centuries but its most celebrated is that of Blackstone’s in which he explained it to be a “great and CIVIL PETITION NO.3718 OF 2023 -:6:- efficacious writ in all manners of illegal confinement”. We need not go into the intricacy of the various definitions of the writ for we are of the view that since it was set in stone in the Magna Carta, it has retained its nature of ensuring that: “No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.” 11. The invocation and passing of the writ of Habeas Corpus, as previously noted, is enshrined in Article 199(1)(b)(i) of our Constitution whereby any person may file an application seeking the High Court to direct that “a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner”. However, the invocation and passing of the writ is subject to the satisfaction of the High Court that no adequate remedy is provided by the law. 12. The GW Act allows a person to be appointed the guardian of a minor “if it is satisfied that it is for the welfare of the minor …”1 It is only once a person is appointed the guardian that they may seek recourse to Section 25 of the GW Act for recovery of custody of a ward. 13. This begs the question: Could Respondent No.3 invoke the constitutional jurisdiction of the High Court for the issuance of a writ of Habeas Corpus? 1 Section 7 of the GW Act. CIVIL PETITION NO.3718 OF 2023 -:7:- COULD RESPONDENT NO.3 INVOKE THE CONSTITUTIONAL JURISDICTION OF THE HIGH COURT? 14. Whatever the inter se relations between the parents may be, the purpose of a writ of Habeas Corpus when it comes to the production of a child is to ensure that the child is, at any given moment, capable of being produced before a Court of law. However, “… there can be no question that a Writ of Habeas Corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out …”2 The writ must only be issued in favour of a person who is entitled to custody of the child. A grandmother, no matter the love she may have for her grandchildren, is not the parent of a child for the purposes of the law and must clearly specify why a writ of Habeas Corpus must be issued for the production of her grandchild(ren), especially so when it is admitted that the grandchild is in the custody of one or both parents. 15. While the Constitution states that the High Court is empowered to make an order “on the application of any person …”, when a writ of Habeas Corpus is sought for the production of a child, it is not for the liberation of a detenue or a prisoner. Instead, it is, as was held by the Court of Appeal of England and Wales in R v. Barnardo (1891) 1 QB 194:3 “… to determine whether the person who has the actual custody of them (infants) as childrens shall continue to have the custody of them as children. In such cases it is not a question of liberty, but of nurture, control and education.” 2 The Supreme Court of India in Dushyant Somal v. Sushma Somal (AIR 1981 SC 1026) 3 Which was subsequently affirmed by the Appellate Committee of The House of Lords in Barnardo v. McHugh [1891] AC 388. CIVIL PETITION NO.3718 OF 2023 -:8:- 16. We also note that the issuing of such a writ is subject to the satisfaction of the High Court that a minor “is not being held in custody without lawful authority or in an unlawful manner.”4 17. The general presumption that children must always be in the custody of their parent(s) is based on “The principle … that parental right or power of control of the person and property of his child exists primarily to enable the parent to discharge his duty of maintenance, protection, and education until he [the child] reaches such an age as to be able to look after himself and make his own decisions.”5 This right to custody, however, “is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.”6 However, where a person entitled to custody is shown to be incapable of approaching the Court or where no such person exists, the question of the right of a friend to make such an application arises.7 In such a situation, the friend of the minor must show that: a) No one who is legally entitled to the custody of the minor or to represent him/her exists, or that such a person, if any, is unable to file a Habeas Corpus petition; and b) The friend is interested in the welfare of the child. 4 Article 199(1)(b)(i) of the Constitution. 5 The Appellate Committee of The House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. 6 The Court of Appeal of England and Wales in Hewer v. Bryant [1970] 1 QB 357 7 The Calcutta High Court in Raj Bahadur v. Legal Remembrancer AIR 1953 Cal. 522. CIVIL PETITION NO.3718 OF 2023 -:9:- 18. In the instant case, and at the very outset, we note that Respondent No.3 failed to aver that she was filing the writ petition in her capacity as a friend of the minor. Even, if for the sake of argument, we assume that she had filed the writ petition as a friend of the minor, she had failed to aver how no one who is legally entitled to the minor’s custody exists or that such a person (in this case, her father) was unable to file a petition. At no point has Respondent No.3 averred that she was authorised by her son to file the writ petition. No correspondence whatsoever was produced before either the High Court or this Court which could show that Respondent No.3 was authorised to file the writ petition as a representative of the minor’s father. There is also nothing on the record which shows that Respondent No.3 was ever appointed the guardian of the minor under the GW Act especially so when a perusal of Section 8 of the GW Act shows that she was not precluded by the Act from seeking appointment as guardian since she would be covered under sub-section (b) of the said Section. We disagree with the assertion that the father of the minor being abroad rendered him unable or incapable of filing a petition seeking a writ of Habeas Corpus. We also note that a mere assertion in her petition that Respondent No.3 wants to “properly look after the detenue” is insufficient to show that she was interested in the welfare of the child. 19. This factual context goes to the root of the question. In the absence of a competently filed writ petition and the presence of an alternative remedy, the High Court ought to, in CIVIL PETITION NO.3718 OF 2023 -:10:- the first place, have satisfied itself that despite these shortcomings, it was still in the best interests of the minor that she be produced before the High Court moreso: a) when it was admitted by Respondent No.3 in her petition that the minor was in the custody of her real mother; and b) an absence as to how the minor being in the custody of her own mother was “… without lawful authority or in an unlawful manner”. These aspects of the case appear to have escaped the notice of the High Court. 20. Despite this, the High Court passed the following order on 18.09.2023: “Learned counsel for the petitioner submits that Haseeba Noor (minor granddaughter of the petitioner statedly aged about 4- years) is in illegal custody of respondents No.3 and 4. 2. Station House Officer, Police Station: Saddar Jalalpur Jattan, District Gujrat/respondent No.1 is directed to recover and then produce aforementioned detenue on 21.09.2023 before this Court. 3. Office is directed to communicate this Court’s order to respondent No.1, telephonically.” 21. A perusal of the said order reveals that at no stage had the High Court: a) satisfied itself that no alternative or efficacious remedy was available to Respondent No.3; b) shown why it had deemed the production of the child appropriate when she was admittedly with her mother; or c) on what basis the continued custody of the minor with her real mother was even prima facie “without lawful authority or in an unlawful manner” which necessitated the production of the minor before the Court. CIVIL PETITION NO.3718 OF 2023 -:11:- 22. The tendency of the High Courts to readily and unhesitatingly resorting to extreme measures by involving law enforcement agencies in family matters cannot be appreciated, especially so where no element of criminality is there and the child is in the lawful and rightful custody of the parent. Such actions cause unnecessary trauma and harassment for the concerned parent, specially where the concerned parent is the real mother of the child. The High Court must exercise extreme care, caution, and circumspection in such matters. Only in exceptional and extraordinary circumstances, where all other methods and measures fail and an element of criminality, forced removal, kidnapping and/or abduction of the child is involved, the High Court may exercise its constitutional jurisdiction. 23. Issuance of a writ of habeas corpus in a custody matter should be an exception, and not the rule, as the GW Act provide the Guardian Court with all requisite powers to pass and enforce its orders in matters of custody of the child(ren). It is, in our opinion, inappropriate for a constitutional court to encroach upon and arrogate itself the powers of a Guardian Court, which is the court of competent jurisdiction under the law, to decide all matters relating to custody of child(ren). 24. The contention of the learned counsel for the Petitioner would therefore appear to be correct. In the presence of an alternative remedy and the absence of any other factor that may necessitate the production of the minor before the High Court, it would appear that the sole ground on which the CIVIL PETITION NO.3718 OF 2023 -:12:- High Court passed its order of 18.09.2023 was the mere contention that the Petitioner had remarried. 25. Therefore, we are of the view that the very order seeking production of the minor before the High Court was, in the peculiar circumstances of the case, without jurisdiction, or, in any event, in excess of jurisdiction. 26. However, we deem it appropriate to address the point as to why the prayer for Habeas Corpus ought not to have succeeded on the merits as well. THE PRAYER FOR HABEAS CORPUS ON ITS MERITS 27. Ordinarily, reference is made to Paragraphs 352 and 354 of D.F. Mulla’s Principles of Mahomedan Law for asserting that a mother is disentitled from custody of her minor child after a second marriage. The said paragraphs were discussed by this Court in Shabana Naz v. Muhammad Saleem (2014 SCMR 343) where this Court was of the view that: “11. Para 352 of the Muhammadan Law provides the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years and of her female child until she has attained puberty and the right continues though she is divorced by the father of his child unless she marries a second husband in which case the custody belongs to the father. 12. Para 354 provides for disqualification of female from custody of the minor, which includes the mother and one of the instance laid down is that if she marries a person not related to the child within the prohibited degree e.g. a stranger but the right revives on the dissolution of marriage by death or divorce. 13. Thus, it is apparent from reading of the two paras of the Muhammadan Law that though the mother is entitled to the custody (Hizanat) of her minor child but such right discontinues when she takes second husband, who is not related to the child within the prohibited degree and is a stranger in which case the custody of minor child belongs to the father. It has been construed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the Court has to CIVIL PETITION NO.3718 OF 2023 -:13:- see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody.” (Underlining is ours) In a more recent pronouncement, this Court in Muhammad Owais v. Nazia Jabeen (2022 SCMR 2123) was of the view that: “6. The basic issue is with reference to the custody sought by the mother for her four children. The emphasis by the father is on the mother's second marriage which it is argued disentitles her to custody under the Islamic Law. D.F. Mullah in Mohammadan Law in Para 352 provides that the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. Para 352 ibid provides that this right continues whilst she is divorced from the father of the child, however, in the event she marries a second time, custody then belongs to the father. Para 354 of Mohammadan Law provides that the mother, who is otherwise entitled to the custody of a child, loses the right of custody if she marries a person not related to the child within the prohibited degrees which are specified in paras 260-261 of Mohammadan Law. So as per the principles of Mohammadan Law by D.F. Mullah where she remarries, she can be disqualified for custody ... These provisions and the principles of Mohammdan Law have been examined by this Court in several judgments where it has held that the conditions contained in Paras 352 and 354 of Mullah's Mohammadan Law are not absolute and are subject to the welfare of the child. In Muhammad Siddique v. Lahore High Court, Lahore through Registrar and others (PLD 2003 SC 887), it was held that although the general rule is that the mother on contracting a second marriage forfeits her right of custody, this rule is not absolute and if it is in the interest of the child, custody should be given to the mother. The Court further held that it is the welfare of the minor that must be considered while determining custody and there is no absolute rule or fixed criteria on the basis of which welfare of the minor can be determined or custody can be awarded. In Mst. Shahista Naz v. Muhammad Naeem Ahmed (2004 SCMR 990), this Court concluded that the right of Hizanat having the force of Injunctions of Islam is an accepted principle of Islamic Law and a female on account of re-marriage may be disqualified to exercise this right, but a mother on account of re-marriage is not absolutely disqualified to be entrusted the custody of a minor child rather she may lose the preferential right of custody. The Court further held that there is no denying the fact that there can be no substitute for the mother of the minor child especially of tender age, therefore, the consideration for grant or refusal of custody will always be the welfare of the minor. In this case, the mother even on contracting second marriage was entitled to retain custody of the minor. Again while looking at the Islamic provisions on custody of minor, this Court concluded in Mst. Hameed Mai v. Irshad Hussain (PLD 2002 SC 267) that the question of custody of a minor child will always be determined on the basis of the welfare of the minor and notwithstanding the father's right for custody under Muslim Personal Law, this right is subject to the welfare of the minor. Again in Shabana Naz v. Muhammad Saleem (2014 SCMR 343), CIVIL PETITION NO.3718 OF 2023 -:14:- Paras 352 and 354 of the Mohammadan Law were considered and the Court concluded that although Mohammadan Law provides that the mother is disentitled to custody if she re- marries, this is not an absolute rule but one that may be departed from if there are exceptional circumstances to justify such departure and even in a situation of a second marriage if the welfare of the minor lies with the mother then she should be awarded custody. 7. The aforesaid judgments clearly dispel the stance taken by the father that on account of the mother's second marriage, she has lost the right of custody over her four children ...” Similarly, the Federal Shariat Court has also held that Mulla’s Principles of Mahomedan Law do not have any statutory authority or sanction behind them. In Najaat Welfare Foundation v. Federation of Pakistan (PLD 2021 FSC 1), the Shariat Court observed that: “… There is a plethora of judgments of the superior Courts of Pakistan, where they have differed from the so-called text books of Muhammadan Law including Mulla's book. This trend was initiated soon after independence of Pakistan. Although, in a very limited way and sporadically, this trend was there even in pre-partition era of British India. After the independence of Pakistan, this trend became a norm by the superior Courts of Pakistan to evolve their own jurisprudence inter alia in the matters of Muslim Personal law also. For example; It was stated in a judgment very clearly while deciding a matter of Hisanat, which is an issue of Muslim Personal Law as: “It would be permissible for the Courts to differ from the rules of Hisanat as quoted or stated in the text books like book of Mulla". [Reference PLD 1965 W.P. Lahore 695]. This trend kept on evolving, and is still evolving. This process is primarily based on following factors: (i) the superior courts are clearly of the view that the opinion contained in text book of so-called Muhammadan Law, are neither final nor binding upon the superior Courts of Pakistan. While discussing paragraphs 352 and 354 of Mulla's book the Supreme Court held: “It has been construed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the Court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody.” (2014 SCMR 343 para 13) (ii) It is clearly mentioned in number of judgments that the book of D.F. Mulla is just a reference and not a statutory law applicable in Pakistan, so it is optional upon the Courts to consult this book while examining any matter in issue related to Muslim Personal Law. While dilating upon paragraph 113 of the Mulla's book it was held: CIVIL PETITION NO.3718 OF 2023 -:15:- “The Quranic Command, as reflected here-in-above, in Verse No.12 of Surah Nisa has completely been ignored in the case, in hand, rather a totally contrary view is being preferred. The main sources of Shariat are; Holy Qur'an, Sunnah, Ijma and Qias and the Hon'ble Federal Shariat Court in case titled "Muhammad Nasrullah Khan v. The Federation of Pakistan and another" (Shariat Petition No.06/I of 2013) has held that, if something in any Book is proved to be different from Quran and Sunnah, that would be invalid. Muhammadan Law by D.F.Mulla, not only in the present case, but other cases also is oftenly quoted for a reference. The Hon'ble Federal Shariat Court, in the referred judgment, has held that, said law is in fact only a reference book and not a statutory law applicable in Pakistan, in the sense that the legislature has not enacted the same. It is just an option of the Court to consult the same on the basis of equity and refer to the principles mentioned in paragraphs of the said book, at times, and that too casually in some matters only. Moreover, the rules quoted in Muhammadan Law are not at all applicable, if in the opinion of the Court, they are found opposed to justice, equity and good conscience. These rules are not even referred to in situations directly covered by the Holy Quran or Sunnah or by binding Ijma and Qias. According to Para- 113 of Muhammadan Law by D.F. Mulla, a childless widow takes no share in her husband's lands, but she is entitled to her one-fourth share in the value of trees and buildings standing thereon, as well as in his movable property including debts due to him though they may be secured by a usufructuary mortgage or otherwise.” (PLD 2016 Lahore 865 para 6) (iii) The superior Courts also very clearly pointed out one of the core reasons why in many cases the text books (like book of Mulla) do not give a comprehensive and clear answer to any proposition of Muslim Personal Law because it suffers from over simplification. “The rule enunciated in para.354 of Principles of Muhammadan Law by Mulla suffers from over simplification. Similarly the statement of law from textbooks on Muslim Law ‘made by the learned Single Judge is not comprehensive. Similarly he has ignored many relevant portions of the textbooks on the subject of Hizanat.” (Ref: 2000 SCMR 838). For these reasons, as discussed earlier, a whole set of jurisprudence of Muslim Personal Law has been evolved in Pakistan by the superior Courts. A few examples are as follows: i) A rule of custody of minor as mentioned in a paragraph- 352 in Mulla's book that a son has to remain with his mother till the age of 07 is not absolute (Ref: 1989 CLC 604). There is no bar on mother or father to have custody of a minor according to Quran and Sunnah nor it is any body's preferential right. It is a question of fact and in all cases the prime consideration is the welfare of child (2000 MLD 1967, 2002 YLR 2548, PLD 2002 Lahore 283, 2004 SCMR 1839 etc.) ii) … iii) … CIVIL PETITION NO.3718 OF 2023 -:16:- iv) … Mulla's “Principles of Muhammadan Law” is a reference or a text book as some times referred in our judgments like other books of this category and not a statutory book. Usually, when the Courts consult it, this exercise is just like consulting a book where the opinions of the great Muslim jurists are easy to get because opinions are mentioned in English language in an over simplified language and paragraphs of the book are numerically marked. The very style of composition of this book often create a confusion amongst the reader that it is a statute book which it is not. Perhaps this is the reason why the petitioner states in his petition that the book of D.F. Mulla comes within the purview of custom and usage which is absolutely wrong and incorrect ...” 28. We are, therefore, of the view that the law has been settled on the point that a mother remarrying does not automatically bar her under the law from the custody of her children; that the forum empowered under the law to determine a child’s custody is the Guardian Court set up under the GW Act; and that the High Court cannot arrogate unto itself the power to determine the matter of the custody of a child in the exercise of its constitutional jurisdiction unless the parameters spelt out earlier by us (infra) are met and such power can only be exercised by the High Court in exceptional and limited circumstances, and that too for the limited purpose by letting the Guardian Court to decide the matter in accordance with the law. For the sake of clarity, these parameters are: I. A writ petition seeking issuance of a writ of Habeas Corpus for production and custody of a child may be filed by: a. One or both parents of the child/minor; or b. The guardian(s) of the child/minor; or c. A friend of the child/minor provided the friend proves: CIVIL PETITION NO.3718 OF 2023 -:17:- i. That no person legally entitled to the custody of the child is present or available; or ii. The person legally entitled to the custody of the child is present and available but incapable of filing a writ petition; and iii. The friend is doing so in the best interests of the child. II. The High Court is satisfied that seeking remedy under the GW Act, or any other law for the time being in force, would not be an adequate remedy. III. The production of the child before the High Court is in the best interests of the child/minor, subject to the caveats spelt out in Paragraphs No. 22 & 23 above. IV. Handing over custody of the minor/child to the person petitioning the High Court is in the best interests of the child/minor. 29. Even otherwise, no ground has been pointed out by the learned counsel for Respondent No.3 to show how the minor being in the custody of the Petitioner was without lawful authority, in an unlawful manner or against the welfare of the minor. THE OBJECTIVES RESOLUTION, CONSTITUTIONAL COMMANDS AND INTERNATIONAL OBLIGATIONS 30. The Objectives Resolution8 of 1949 states that the purpose of a Pakistani Constitution would be to ensure that “… the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and 8 Which is now a substantive part of our Constitution by virtue of Article 2A. CIVIL PETITION NO.3718 OF 2023 -:18:- make their full contribution towards international peace and progress and happiness of humanity.”9 This is why the Constitution recognises and protects as fundamental rights the security and equality of all citizens in Articles 9 and 25 which are reproduced for ease of reference: “Article 9 Security of person. No person shall be deprived of life or liberty save in accordance with law. 25. Equality of citizens. (1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex. (3) …” (Underlining is ours) The people of Pakistan are not limited to a single gender but also include its women who are just as entitled to be a part of the nation’s collective struggle towards international peace, progress and happiness striving for in their lives. In endeavouring to achieve these noble aspirations, the mothers of the nation must always be accorded the highest degree of respect for they mould the generations which will continue Pakistan’s collective struggle. To justify divesting custody of a child from their mother on the basis of antiquated, parochial and patriarchal constructs and customs is in stark conflict with the blessed titles given to Mothers in the Holy Quran. In fact, this Court in Beena v. Raja Muhammad (PLD 2020 SC 508) has held: “13. The high status of motherhood is reflected in the naming of a chapter of the Holy Qu'ran after Maryam (Mary), peace be 9 Point 11 of the Objectives Resolution, 1949. CIVIL PETITION NO.3718 OF 2023 -:19:- upon her, the only chapter named after a woman. Almighty Allah recalls her qualities and bestows on her a number of titles: a purified (tahharaki) and chosen (istafagi) one, a sign (ayatan) of God, truthful (siddiqatun) and devoutly obedient (qanitina). The lady Maryam (peace be upon her) is mentioned 34 times in the Holy Qur'an. The mother of the Prophet Isa (peace be upon him) faced the pangs of childbirth alone. She, like the lady Haajar, overcame formidable odds to care for her child. These great ladies are acknowledged and incorporated into the Faith, enriching Islam's glorious tradition. It is for believers to ponder and reflect upon their lives, and to derive lessons from it. To be financially underprivileged, to be weighed down with a child, to give birth or to have a disability is not something to be derided. For a mother to bear the pain of childbirth, the greatest human natural pain, but then to have her child wrested away from her on the pretext that she is incapable of taking care of the child is insensitive in the extreme, and may also be characterized as hypocritical.” (citations omitted) 31. Even on the international legal plane, women’s rights have attained the status of obligations erga omnes which have since been codified in the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”) with Article 16 of CEDAW explicitly stating that: “1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; CIVIL PETITION NO.3718 OF 2023 -:20:- (h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration. 2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.” (Underling is ours) It is important to also note that discrimination in CEDAW is defined in Article 1 as: “For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” (Underlining is ours) 32. The nations of the world have also recognised that children have rights by virtue of being children. These obligations are also obligations erga omnes and have since been codified in the United Nations Convention on the Rights of the Child (the “CRC”). Article 9 of the CRC, which is relevant to this Petition, is reproduced for ease of reference: “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. 4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause CIVIL PETITION NO.3718 OF 2023 -:21:- while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.” (Underlining is ours) Article 9 must be read with Article 37 of the CRC which clearly states that: “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.” (Underlining is ours) 33. The State of Pakistan acceded to CEDAW on 12.03.1996 without any reservations and ratified the CRC on 12.11.1990 with its only reservation being that the CRC’s Articles will be interpreted in light of Islamic principles and values. However, a holistic reading of the relevant Islamic principles, the CRC and CEDAW lead us to the conclusion that there is no legal justification for separating a mother from her CIVIL PETITION NO.3718 OF 2023 -:22:- child if the mother remarries. We frequently hear cases (the instant matter being one such case) where litigants seek to divest mothers from their children on no other ground than the fact that they have remarried. This practice must end. Our children, their mothers and both the welfare of the mother and the child are paramount. To cite and rely on antiquated, parochial and patriarchal constructs of dignity and honour in order to distance and deprive children of their own mothers has no basis in law. 34. We are clear in our minds that the ordering of the divestment of custody by the impugned judgement/order is without lawful authority. No ground, basis or justification in support of the impugned judgement/order has been shown or posited by the learned counsel for Respondent No.3. CONCLUSION 35. An upshot of our discussion is that in the presence of an adequate remedy, the High Court was constitutionally barred from exercising jurisdiction under Article 199 of the Constitution. As a result, all proceedings in Respondent No.3’s writ petition are declared to be without lawful authority. 36. We have also arrived at the conclusion that the very writ petition filed by Respondent No.3 was bereft of merit and was liable to be dismissed. 37. We were also sanguine that the concerned Guardian Court, seized of the guardian petition filed by the Petitioner, would proceed with the matter expeditiously, with CIVIL PETITION NO.3718 OF 2023 -:23:- all due diligence, and conclude the matter as soon as possible without granting any unnecessary adjournments. We were also assured by the Petitioner, who was present in person, that she would retain custody of the child and she would not transfer the child to any other relative, subject to the decision of the Guardian Court. 38. We, however, observe that since the matter of custody requires the recording of evidence and findings of fact to be recorded by a Court of competent jurisdiction, our observations shall be treated as tentative and confined only to the impugned order/judgement of the Lahore High Court, Lahore before us and will not, in any manner whatsoever, influence the Guardian Court/Family Court, Gujrat seized of the guardian petition filed by the Petitioner, which shall decide the matter by independent application of mind to the facts, circumstance, and evidence produced before the same. 39. These are the detailed reasons for our short order reproduced above, whereby the petition was converted into an appeal and allowed, and the impugned judgement/order dated 21.09.2023 was set aside. Judge Judge Judge ISLAMABAD, THE 13th of December, 2023 Khalil, LC*/- APPROVED FOR REPORTING*/-

{'id': 'C.P.L.A.3718_2023.pdf', 'url': ''}

{'id': 'C.P.L.A.3718_2023.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE FAISAL ARAB CIVIL PETITION NOs. 3728 & 4385 OF 2017 (On appeal against the judgment dated 03.10.2017 passed by the Peshawar High Court, Peshawar in Writ Petition Nos. 3013-P & 3318-P of 2017) Syed Liaqat Shah (In both cases) … Petitioner VERSUS 1. Vice Chancellor, University of Engineering & Technology, Peshawar etc (In CP 3728/2017) 2. Chairman, Chief Minister Complaint & Redressal Cell, Peshawar etc (In CP 4385/2017) … Respondents For the Petitioner: Mr. Muhammad Shoaib Shaheen, ASC Mr. Ahmad Nawaz Chaudhry, AOR For the Respondents: N.R. Date of Hearing: 09.07.2018 JUDGMENT FAISAL ARAB, J.- In December, 2014, the respondent University appointed the petitioner on contract basis as Project Director on its ongoing project of Jalozai Campus for a period of six months. His term of office was later extended from time to time. During subsistence of his last contractual tenure, he was relieved on 20.07.2017 in pursuance of Chief Minister’s Complaint & Redressal Cell Peshawar’s letter dated 13.07.2017. The Chief Minister’s cell wanted that the university should probe into the allegations leveled against the petitioner in the performance of his duties as Project Director. In this regard, the respondent constituted a three member inquiry committee. CIVIL PETITION NOs. 3728 & 4385 OF 2017 2 2. Soon after the petitioner was relieved, he filed two constitution petitions in the Peshawar High Court seeking reliefs (i) that direction be given for the continuation of his employment as Project Director; (ii) that the notification whereby the inquiry committee was constituted be declared nullity in the eyes of law and (iii) the Chairman, Chief Minister’s Complaint and Redressal Cell be directed to stop interfering in the affairs of Federal Government funded projects. The said petitions were dismissed by the High Court on the ground that as the services of the petitioner were contractual, its tenure was not protected under any law. However, in order to ensure that no stigma is attached to petitioner’s performance as Project Director in his absence, it was directed that a proper opportunity of hearing should be given to the petitioner to enable him to defend himself in the pending inquiry proceedings. Having failed to secure any of the reliefs which the petitioner sought from the High Court, present petitions for leave to appeal have been filed. 3. Before this Court, learned counsel for the petitioner though conceded that the petitioner being a contractual employee his employment tenure was not legally protected, it was submitted that now that the petitioner has been relieved from his job, it is strange that inquiry is being conducted against him. 4. We are of the view that relieving a contractual employee simplicitor does not mean that any wrongdoing committed by him during his contractual period cannot be CIVIL PETITION NOs. 3728 & 4385 OF 2017 3 inquired into. If found involved in any wrongdoing, he can still face civil liability or criminal action or both, notwithstanding the fact that he has been relieved from his contractual post. Only where the tenure of service of an employee is protected under a law, it cannot be curtailed without first initiating and completing disciplinary proceedings against him. However, where wrongdoing of a contractual employee comes to light, who is governed by the principle of “Master and servant”, he can be relieved of his service first and inquiry into his wrongdoings can commence thereafter. Termination of contractual employment simplicitor is no defence either against taking a criminal or civil action that might be warranted on account of any wrongdoing committed during the contractual period. 5. It is also ludicrous to say that as the project was funded by Federal Government, therefore, no action could be taken on the basis of a report of Chief Minister’s Complaint and Redressal Cell. Any credible information of a wrongdoing coming from any source can be made basis of a legal action by the competent authority. Hence, where the competent authority in its discretion considers that there is substance in the allegation, it can either order a fact finding inquiry or take such other action as is permissible under the law. The petitioner being contractual employee was relieved from his office as Project Director in pursuance of the letter written by the Chief Minister’s Complaint and Redressal Cell, Peshawar and immediately an inquiry committee was constituted to probe into the allegations of wrongdoings committed by the petitioner in his capacity as Project CIVIL PETITION NOs. 3728 & 4385 OF 2017 4 Director. We find no legal infirmity in the adoption of such a course of action. The learned High Court has already granted enough concession to the petitioner by directing the university to grant him audience in the pending inquiry. 6. We, therefore, find no reason to interfere in the impugned judgment. These petitions having no merit are accordingly dismissed and leave is refused. JUDGE JUDGE JUDGE Islamabad, the 9th of July, 2018 Approved For Reporting Khurram

{'id': 'C.P.L.A.3728_2017.pdf', 'url': ''}

{'id': 'C.P.L.A.3728_2017.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 3729 OF 2015 (On appeal against the judgment dated 27.10.2015 passed by the High Court of Sindh, Karachi in Ist Appeal No. 79/2015) M/s World Trans Logistics etc … Petitioners VERSUS Silk Bank Limited and others … Respondents For the Petitioners: Syed Waqar Hussain Naqvi, ASC For the Respondents: N.R. Date of Hearing: 29.01.2016 JUDGMENT FAISAL ARAB, J.- In the year 2009, the petitioner No. 1 obtained finance facility from the respondent No. 1 Bank. The finance was secured by mortgage of immovable properties as well as by pledge of goods. Subsequently, the petitioner No. 1 committed default in the repayment of its financial obligations. This resulted in respondent Bank’s filing recovery suit bearing No. 263/2010 in the Banking Court No. IV, Karachi for a sum of Rs.47,575,218.75/- under the Financial Institutions (Recovery of Finances) Ordinance, 2001. The petitioner No. 1 filed application for grant of leave to defend the suit, which was dismissed. After considering the breakup statements, suit was decreed in a sum of Rs.42,242,625/- along with cost of funds to be determined by the executing court under the provisions of Section 3(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The petitioner No. 1 then filed appeal in the High Court. Before the High Court the only ground that was urged was Civil Petition No. 3729/2015 2 that as the goods were pledged with the respondent No. 1 Bank and the same have been misappropriated by its officials, therefore, the petitioner No. 1 is not liable to make payment. It was claimed that the value of the pledged goods at the relevant time was Rs.46,495,500/-. The petitioner No. 1 has also filed a separate Banking Suit bearing No. B-54/2010 which is pending decision in the High Court. It was prayed that until the petitioner No. 1’s suit is decided, the recovery proceedings may be stayed. However, the Division Bench of the High Court dismissed the appeal vide impugned order dated 27.10.2015, hence this petition. 2. Before this Court the quantum of the decretal amount has not been called in question. The only ground that has been urged is that as the pledged goods went missing under the control of respondent No.1 in its capacity as pledgee, therefore, the responsibility to account for them entirely falls on respondent No.1. In this regard, learned counsel for the petitioners relied upon the cases of Lallan Prasad Vs. Rahmat Ali and another (AIR 1967 Supreme Court 1322), M/s Ali Traders Rice Dealer Gujranwala through Sole Proprietor and another Vs. National Bank of Pakistan (2015 CLD 1), Askari Bank Limited Vs. Waleed Junaid Industries and others (2012 CLD 1681), Sardar Muhammad Vs. Muhammad Israr etc (1995 SCMR 1356), A.M. Burq and another Vs. Central Exchange Bank Ltd and others (PLD 1966 (W.P) Lahore 1) and Apollo Textile Mills Ltd and others Vs. Soneri Bank Ltd (2012 CLD 337). 3. We have examined the ‘letter of pledge’ that was executed by the petitioner No. 1 on 31.7.2009 in favour of the Civil Petition No. 3729/2015 3 respondent No. 1 Bank. From paragraph 3 of this letter of pledge, the petitioner No. 1 committed itself that it shall maintain a register with regard to the pledged goods wherein all particulars of the goods and the quantities consumed therefrom from time to time shall be recorded. It was also committed that on weekly basis, the petitioner No. 1 shall furnish statement showing all entries made in the register from time to time. In paragraph 4 of this document, the petitioner No. 1 further committed that it will hold the respondent No. 1 Bank harmless and indemnified against all loss, injury, damage or deterioration that may be caused to the pledged goods as a consequence of fire, storm, tempest, earthquake, rains, floods, riots, civil commotion, theft, misappropriation or embezzlement. From these terms of the contract, it is to be seen whether only the constructive possession of the pledged goods was delivered to the respondent No. 1 Bank or the actual possession was with the petitioner No. 1. 4. Under the Contract Act, a pledge is ordinarily construed to mean delivery of an article to the pledgee by the pledgor as security for a debt or for carrying out some engagement that has been committed by the pledgor with the pledgee. An article owned by the pledgor is physically delivered to be kept by the pledge as security until the commitment of the pledgor with the pledgee is honoured. However, in mercantile practice another form of pledge has also developed. Under this form, the actual delivery of goods is not entrusted to the pledgee as only constructive possession of the pledged goods is handed over. In this manner, the pledgor is allowed to utilize the pledged goods in his ordinary course of business. Examples of such form of pledge are pledge of raw materials and Civil Petition No. 3729/2015 4 stocks-in-trade of an industrial or commercial enterprise which need to be consumed on regular basis in the ordinary course of business. On account of such use continuous change takes place in the inventory. The inventory is to be replenished by the pledgor. Hence entire current inventory stands covered under the contract of pledge on which the pledgee can exercise his right to takeover in the event of breach of the contract by the pledgee. This form of pledge attaches certain conditions on the pledgor. Some of which, as an example, are enumerated below:- (i) maintain a register to record the particulars of the pledged goods and their time to time utilization and communicate to the pledgee changes in the level of inventory on weekly or fortnightly or monthly basis; (ii) The value of the inventory of the pledged goods is to be maintained to a level which meets the value of the security provided under the contract of pledge. (iii) hold the pledgee harmless against any loss, damage or deterioration caused to the pledged goods for any conceivable reason; and, (iv) obtain insurance cover against any loss, damage or deterioration that may be caused to the pledged goods; 5. Thus in the above discussed form of pledge, the pledgor wears two hats, one that of a pledgor and the other that of a person authorized by the pledgee to hold the pledged goods in trust for the pledgee with the freedom to deal with them in the ordinary course of business. On account of enjoying such freedom, the pledgor is obligated to ensure that while dealing with the pledged goods, the security provided for the debt is not diluted or destroyed to the disadvantage of the pledgee. Furthermore, as the actual possession Civil Petition No. 3729/2015 5 of the goods under pledge is entrusted to the pledgor, the standard of care in relation to pledged goods, as envisaged under Section 151 & 152 of the Contract Act, purely falls on the pledgor. If freedom to utilize the pledged goods is not made available to the pledgor engaged in some industrial or commercial enterprise and physical possession is retained by the pledgee then this would immobilize the pledgor from utilizing such goods in ordinary course of his business. The whole purpose of obtaining the finance under this type of pledge against raw materials or stocks-in-trade would thus stand frustrated. 6. From the above discussion it is evident that a valid pledge can be created not only by actual delivery of articles but also by handing over constructive possession only. The pledgee retains a mere right to take possession of the pledged goods in case the pledgor commits default in discharge of his obligation. The character of pledge is not lost merely because actual physical possession of the pledged goods was not delivered to the pledgee. This is exactly what has been done in the transaction that is subject matter of the present proceedings. From paragraph 3 and 4 of the letter of pledge, it can be seen that the petitioner No.1 was permitted by respondent No. 1 Bank to deal with the pledged goods. As the petitioner No. 1 was at liberty to deal with the pledged goods in his ordinary course of business, it was required under paragraph 3 of the letter of pledge that the petitioner No. 1 shall maintain a register for recording changes in the inventory of pledged goods that occur on account of petitioner No. 1’s consumption of the goods from time to time. Furthermore, paragraph 4 of the letter of pledge also provides that in case any loss or damage or deterioration in the Civil Petition No. 3729/2015 6 value of goods is caused that shall be borne by the petitioner No. 1 without any responsibility whatsoever on the respondent No. 1 Bank. So it is apparent that only constructive possession was delivered to the respondent No. 1 Bank and actual possession of the pledged goods was with petitioner No.1. Hence it was for the petitioner No.1 to take care of the goods as a man of ordinary prudence would take of his own goods and in case any loss, damage or deterioration is caused to the pledged goods, the respondent No. 1 Bank cannot be held accountable. In the present case as the respondent No.1 Bank in terms of paragraphs of 3 of the letter of pledge dated 31.7.2009 was only having constructive possession of the pledged goods therefore it is not liable to account for the alleged theft or misappropriation of the pledged goods. In view of the different nature of pledge, the case law cited by learned counsel of the petitioners has no application to the present case. 7. For what has been discussed above, we find no legal infirmity in the impugned judgment. This petition is, therefore, dismissed and leave is refused. JUDGE JUDGE JUDGE Islamabad, the 29th of January, 2016 Approved For Reporting Khurram

{'id': 'C.P.L.A.3729_2015.pdf', 'url': ''}

{'id': 'C.P.L.A.3729_2015.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL CIVIL PETITIONS NO.3752, 3753 AND 3754 OF 2018 (Against the judgment dated 19.9.2018 of the Islamabad High Court Islamabad passed in WPs Nos.2839 of 2018, 2841 of 2018 and 2842 of 2018) Chairman NAB through Prosecutor General, Islamabad …Petitioner(s) (In all cases) VERSUS Mian Muhammad Nawaz Sharif In C.P.3752/2018 Maryam Nawaz Sharif In C.P.3753/2018 Capt. (Retd.) Muhammad Safdar In C.P.3754/2018 …Respondent(s) For the petitioner(s): Mr. Muhammad Akram Qureshi, Special Prosecutor, NAB (In all cases) Mr. Jahanzeb Khan Bharwana, Addl.P.G. NAB For the respondent(s): Khawaja Haris Ahmed, Sr. ASC (In C.P.3752/2018) Mr. Muhammad Amjad Parvez, ASC (In C.P.3753/2018) Not represented (In C.P.3754/2018) Date of hearing: 12.11.2018 ORDER MIAN SAQIB NISAR, CJ.- Leave to appeal is granted in these petitions to consider, inter alia, the following points:- i. Whether in a case where there is a statutory ouster of jurisdiction of courts to grant bail pending appeal, the constitutional jurisdiction to grant bail can be invoked on the same principles or grounds as are available under the general law? Civil Petitions No.3752, 3753 and 3754 of 2018 -: 2 :- ii. Whether the judgment dated 03.08.2016 in C.P. No.11618/2016 titled as “Mir Shahjahan Khan Khetran Vs. NAB” and Judgment dated 28.11.2014 passed in C.P. No.1305/2014 titled as “Muhammad Arshad Vs. Tassaduq Hussain @ Mittu and other” is per incuriam as per the ratio of the cases reported as Haji Ghulam Ali Vs. The State through A.G., N.W.F.P., Peshawar and another (2003 SCMR 597), Abdul Aziz Khan Niazi Vs. The State through Chairman, NAB, Islamabad (PLD 2003 SC 668), Olas Khan and others Vs. Chairman NAB through Chairman and others (PLD 2018 SC 40), Peer Mukaram-ul-Haq Vs. National Accountability Bureau (NAB) through Chairman and others (2006 SCMR 1225)? iii. Whether the scope of the constitutional jurisdiction for grant of bail during investigation/trial or release on bail by way of suspension of sentence is much wider than the scope of grant of bail under the general law, or otherwise? iv. What are the parameters of tentative assessment of evidence and how can it be differentiated from the deeper appreciation of evidence particularly in cases involving grant of bail by suspending the sentence and release on bail during pendency of the appeal? v. Whether the guidelines provided by the Superior Courts regarding ouster of Section 426 of the Code of Criminal Procedure, 1898 (Cr.P.C.) are required to be followed for the suspension of sentence in cases of NAB? If so, what are the principles regulating suspension of the sentence under Section 426 Cr.P.C.? vi. Whether the principles regulating bail under Sections 497 and 498 Cr.P.C. would also be applicable while considering the matter of suspension of sentence? vii. If in a case the convict is entitled to suspension of sentence but the judgment/order suspending the sentence is not happily worded, what would be the effect thereof? Civil Petitions No.3752, 3753 and 3754 of 2018 -: 3 :- viii. If a concession of suspension of sentence is once extended by the court of appeal, whether the principles of cancellation of bail would apply for withdrawal of suspension? ix. Whether the learned Islamabad High Court has correctly interpreted the provisions of Section 9(b) of the National Accountability Ordinance, 1999 (Ordinance)? x. Whether the ground of hardship can be considered while suspending the sentence in a NAB case? xi. Whether the merits of a case can be discussed and conclusive findings be given, as done by the learned Islamabad High Court in its order dated 19.09.2018, are permissible in its constitutional jurisdiction while dealing with cases of suspension of sentence? xii. Whether in a constitutional petition, a miscellaneous application filed under Section 561-A, Cr.P.C. can be filed for adjudication where the Cr.P.C. is not applicable? xiii. Whether the learned Islamabad High Court can take up the constitutional petition when the main appeals were already fixed for hearing? xiv. Whether a detailed order (consisting of 41 pages) is permissible while dealing with the suspension of sentence? xv. Whether or not the learned Islamabad High Court has ignored the guidelines laid down by this Court in case reported as Muhammad Shakeel Vs. The State and others (PLD 2014 SC 458)? xvi. Whether the learned Islamabad High Court has properly interpreted the provisions of Sections 9(a)(v) and 14(c) (first and second part) of the Ordinance read with Articles 117, 122 to 129 of the Qanun-i-Shahadat Order, 1984 with regards to burden of proof and presumption? xvii. Whether the judgments cited as Ghani-ur-Rehman Vs. National Accountability Bureau and others (PLD 2011 SC Civil Petitions No.3752, 3753 and 3754 of 2018 -: 4 :- 1144) and Khalid Aziz Vs. The State (2011 SCMR 136) are distinguishable from the facts of the present case? 2. Let this matter be placed before a larger bench to be constituted by the Hon’ble Chief Justice of Pakistan. Re-list on 12.12.2018. CHIEF JUSTICE Islamabad, the 12th November, 2018 JUDGE JUDGE M. Azhar Malik/*

{'id': 'C.P.L.A.3752_2018.pdf', 'url': ''}

{'id': 'C.P.L.A.3752_2018.pdf', 'url': ''}

a I. IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE YAHYA AFRIDI Civil Petition No.3772 of 2019 Against judgment dated 29.08.2019 of Lahore High Court, Multan Bench, Multan, passed in Civil Revision No. 1202-D of 2003. Muhammad Yousaf & others Petitioner(s) VERSUS Nazeer Ahmed Khan (deed) through LRs, etc Respondent(s) For the Petitioner(s): Syed Muhammad Ali Gillani, ASC Ch. Akhtar Ali, AOR For the Respondent(s) Ch. Arshad Au, ASC/AOR Date of hearing: 12.08.202 1 ORDER IJAZ UL AHSAN, J-. The petitioners seek leave to appeal against a judgment of the Lahore High Court, Multan Bench, Multan, dated 29.08.2019. Through the impugned judgment, a Revision Petition (C.R.No. 1202-D of 2003) filed by the Respondents was disposed of by directing that the original suit instituted by the Respondents would stand dismissed as withdrawn with liberty to file a fresh one which remedy on being availed will be dealt with in accordance with law. 2. Briefly stated the facts necessary for disposal of this its are that Farzand Ali, father of Respondent No.1 CiUÜ Petition No.3772 of 2019 2 (Nazir Ahmed Khan) migrated to Pakistan after partition of the subcontinent. He filed a claim for his abandoned land in India. After verification of his claim bearing No.4380, an agricultural land against 487 units was allotted to him in Chak No. 134/9-L and against the remaining 187 units, agricultural land was allotted to him in Chak No.25/9-L, Tehsil & District Sahiwal. The said Farzand Ali appointed Muhammad Ameer as his general attorney. On the basis of such general power of attorney, Muhammad Ameer transferred the land situated in Chak No. 125/9-L, in favour of Mst. Parveen Noon (Respondent No.2) vide mutation No.43 dated 26.11.1968. Respondent No.2 was allegedly a relative of Muzaffar Qadir, the then Deputy Commissioner, Sahiwa].. As such, an inquiry was initiated against the said Deputy Commissioner regarding allotment of the land. A notice in respect of the said inquiry was also served upon Farzand Ali, but he did not opt to appear and subsequently the inquiry proceedings were dropped Further, it was alleged that said Farzand Ali also came to know about allotment of the land in his favour on an application submitted by some informer, but he did not take any action or interest nor did he make any claim in respect of said land during his life time. The land purchased by Respondent No.2 was surrendered by her Civil Petition No.3 772 of 2019 3 in favour of the Federal Land Commission vide mutation No.18 dated 20,05.1978. Such land was later allotted to Khadim Hussain and Jaffar Hussain, petitioners No.5 & 6, respectively. 3. It appears from the record that Farzand Au died in the year 1978. The power of attorney attested by him was witnessed by his son Bashir Ahmad, who also happened to be marginal witness of power of attorney. He never raised any objection regarding validity of the same, Respondent No.1 (Nczzeer Ahmacl Khan.) after the death of his father (Farzartd All) instituted a suit for possession on 20.01.1979 of the land originally allotted to his father Neither any mutation, order or proceedings were challenged nor any declaration regarding cancellation of the power of attorney in favour of Muhammad Ameer was sought by him. Even, the Federal Land Commission in whose favour the land in question was surrendered by Mst. Parveen Noon was not arrayed as a party in the suit. Bashir Ahmad, the other son of Farzand Ali did not join Respondent No.1 in filing of the suit rather he was impleaded as a defendant therein. He died during pendency of the suit and his legal heirs were impleaded who did not support the claim of Respondent No.1 and were proceeded ex-parte. I -- -- - r Civil Petition No. 3772 of 201 4 4. After recording evidence of the parties, the suit was dismissed by the trial Court, vide judgment & decree dated 01.06,2000. The appeal filed against such judgment & decree was also dismissed, vide judgment & decree dated 28.07.2003. Thereafter, a Civil Revision was filed in the Lahore High Court, Multan Bench, Multan. This was disposed of vide impugned judgment dated 29.08.20 19 in the terms noted above. Hence, this petition. 5. The learned ASC for the petitioners submits that the impugned order passed by the Lahore High Court in exercise of its revisional Jurisdiction is not only in violation of Order 23 Rule 1, CPC but is patently in excess of jurisdiction vesting in the High Court while acting as the revisional Court. He maintains that permission to file a fresh suit cannot be granted where the defect in the original suit goes to the root of the case and in any event a fresh suit by adding new parties and seeking a different relief cannot be allowed to be instituted decades after filing of the original suit. He submits that by the time the suit of the Respondents reached the revisional Court 48 years had already elapsed in litigation and by not commenting on the fact that the suit would patently be barred by limitation, the High Court has ignored an express provision of order 23 Civil Petition No. 3772 of 2019 5 0 Rule 1, CPC which categorically provides that in any fresh suit instituted on permission granted under order 23 Rule 1, CPC the plaintiff shall be bound by the Law of Limitation in the same manner as if the first suit had never been instituted. He finally submits that a condition precedent for exercising powers under order 23 Rule 1, CPC is that a suit which failed due to some formal defect can be allowed to be re-filed after removing such "formal defect" in the interest of justice. He further submits that the suit of the Respondents did not suffer from any "formal defect". He maintains that there were patent and inherent defects in the suit touching the merits of the case therefore permission to withdraw the same amounts to granting permission to file a fresh and different suit, seek a totally different relief by impleading more and different parties which cannot be granted. He finally argues that the High Court fell into error in setting aside the detailed and well reasoned judgments of the trial Court as well as the Appellate Court and passed the impugned judgment which is not in consonance with the relevant principles of law and amounts to condemning the petitioners to go through the agony of another protracted round of litigation potentially spanning over decades for no fault on their part. C' Civil Petition No. 3772 of 2019 6 6. The learned counsel for the Respondents on the other hand has supported the impugned judgment 7. We have heard the learned counsel for the parties and gone through the record. It appears that Farzand Ali and some others were co-sharers in a property. Farzand Ali on 09.11.1968 through a registered general power of attorney appointed one Muhammad Ameer as his general attorney. In such capacity, he as well as other sharers transferred their property vide mutation No.43 dated 20.11.1968 in favour of Mst. Parveen Noon (Respondent No.2). Respondent No-1 (Nazeer Ahmed Khan) is one of the sons of Farzand Au. He after the death of his father without seeking cancellation of the aforenoted power of attorney as well as the relevant mutations filed a suit for possession under Section 8 of the Specific Relief Act, 1877. The record also indicates that his surviving brother Bashir Ahmad did not join him as one of the plaintiffs and was arrayed as a defendant in the suit despite being necessary parties. Another necessary party namely the Federal Land Commission was not arrayed as a defendant either. At the same lime, Muhammad Ameer who was acting as attorney of Farzand Ali and the other co-vendors were not impleaded in the suit. In view of the fact that where even the basic documents were not I Civil Petition No. 3772 of 2019 7 challenged, which continued to hold the field and on the basis of such documents proprietary and possessory right, title and interest in the property stood transferred and was duly acted upon in all relevant records, a simple suit for possession was not maintainable and was rightly dismissed by the trial Court, vide judgment & decree dated 01.06.2000 for the said reason. This judgment and decree was correctly upheld by the Appellate Court vide judgment & decree dated 28.07.2003. 8. We note that in granting permission to withdraw the suit to file a fresh one, the High Court has relied upon the provisions of Order 23 Rule 1, CPC Before proceeding with the matter, it would be useful to reproduce Order 23 Rules 1, CPC which reads as follows: 111. Withdrawal of suit of abandonment of part of Claim. (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission S Civil Petition No.3772 of 2012 8 referred to in sub-rule (2), he shall be liable for such costs as a Court may award and shall be precluded from instituting any fresh suit in respect of such subject- matter or such part of the claim. (4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaints to withdraw without the consent of the others. In terms of the aforenoted provisions of the Code of Civil Procedure, a plaintiff who wishes to withdraw his suit with permission to file a fresh suit must show that there was a formal defect in the suit which can result in failure of the same; In the instant case, the record does not show that any application for said purpose was moved before the High Court nor was any formal defect appears to have been identified or asserted before the learned High Court. Further, where a defect is removable or rectifiable by amendment of the plaint, permission to file a fresh suit cannot be granted Finally, where a defect which goes to the root of the case and is not merely a formal defect, permission to file a fresh suit would amount to allowing the plaintiff to retrace his steps plug the loopholes in the earlier suit and file a different case with different/ additional parties and a totally different relief. These to our mind are not steps that could by thy stretch of the language be termed as removal of formal defect. See Muhammad Boota v. Member (Revenue), Board of Revenue (PLD 2003 Sc Civil Petition No.3772 of 2019 9 979), Muhammad Kazim Ziauddin• Durrani v. Muhammad Asim Fakharuddin Durrani (2001 SCMR 148), Am jad Rashid Khan Malik v. Shahida Naeem Malik (1992 SCMR 485) and All Muhammad v. Rahmatullah (1990 SCMR 913). As such, neither the suit can be permitted to be withdrawn nor permission to file a fresh suit be granted on that score. 9. We also notice that in the instant case, both parties had completed their evidence and the case had been decided on merits by the trial as well as the Appellate Court. The request for withdrawal was made after decades before the revisional Court which appears to be an attempt on the part of the Respondents to retrace their steps, plug gaps and loopholes in evidence and take a second shot at the relief that two Courts of fact had denied. In the facts and circumstance of the instant case, non-joinder and mis-joinder of the parties could not be used as a ground for conditional withdrawal of the suit and failure to seek declaration and cancellation was an inherent and fatal defect which could not be allowed to be cured at such belated stage. 10. The term formal. defect that has not been defined in the Code of Civil Procedure, its plain in the context that the word has been used in the CPC Civil Petition No. 3772 of 2019 10 appears to be that such defect should be only on the point of form of the suit. It appears to connote every kind of defect which does not affect the merits of the case However, if the defect is material and substantial and affects the merits of the case or goes to the root of the claim it cannot be termed as a formal defect within the scope and meaning of sub clause (a) of Rule 1(2) of Order 23, CPC. A perusal of the impugned judgment passed by the High Court does not show which formal defects were pointed out to the Court that persuaded it to not only allow withdrawal but also to grant permission to file a fresh suit. Unfortunately, the order of the High Court is also silent on that score which leads us to believe that no such formal defect was pointed out by the Respondents. It is clear and obvious to us that the suit of the Respondent suffered from a fatal defect. He filed a suit for possession without seeking a declaration of title, knowing that the property in question stood transferred on the basis of registered instrument. The suit was in our opinion stillborn from its very inception as it was not competent. See Province of the Punjab v. Ohazanfar Ali Shah (2017 SCMR 172), Sultan Mehmood Shah v. Din Muhammad (2005 SCMR 1872) and Muhammad Aslam v. Ferozi (HID 2001 Sc 213). It therefore follows that i the suit was inherently and technically defective, the - C Civil Petition No.3 772 of 2019 11 defect could not be termed as a mere formal defect. If the Respondent lingered it on for 40 years he has nobody but himself to blame and cannot be presented with the bonus of filing a fresh suit 40 years later. Nothing could be more unjust. 11. Order 23 Rule 1 (2), CPC also provides that the limitation for filing of the suit would start from the date when the original suit was instituted and it cannot start from the date when the permission was granted for filing of the fresh suit. The present suit appears to have been filed initially on 20.01.1979 and it was alleged that even at that time, it was barred by time. Even if limitation is computed from the said date i.e. 20.01.1979 (the date of institution of the first suit) permission could not have been granted because more than 40 years had elapsed between the alleged cause of action on the basis of which the suit was filed and the date when the suit was actually filed. 12. That being so, a fresh suit on the basis of permission granted by the Court would obviously be filed 40 years later and the lapse of 40 years between the time that cause of action arose and filing of the fresh suit cannot be condoned on the basis that a "formal defect" was suddenly discovered in the High Court. The I Civil Petition No.3772 of 2029 12 judgment of the High Court is silent on the said question which appears to have escaped notice of the Court. We are in no manner of doubt that a fresh suit, if filed pursuant to the impugned judgment of the High Court would be barred by time by 4 decades. It would be unjust and unfair to force the parties to go through the agony of the motions of yet another unnecessary round of litigation if the question of limitation (which in the facts and circumstances of this case is essentially a fait accompli) is left to be decided by the trial Court. It would doubtlessly be an exercise in futility and would provide a rope to the Respondents to drag the petitioners into further arduous and agonizing rounds of litigation without there being any end to their miseries in the foreseeable future. Nothing could, in our opinion, be more inequitable and unjust. 13. The jurisdiction of the High Court as a Revisional Court is limited to examining the question if the lower fora have, (a) exercised jurisdiction not vested in it by law or, (b) have failed to exercise jurisdiction so vested or, (c) have acted in exercise of its jurisdiction illegally and with material irregularity. Perusal of the impugned judgment of the High Court shows that it proceeds beyond the jurisdictional powers and parameters of the High Court in its Revisional C I Civil Petition No.3772 of 2019 , 13 Jurisdiction and is therefore in our opinion not sustainable. 14. For reasons recorded above, we convert this petition into an appeal and allow the same. The impugned judgment of the High Court dated 29.08.20 19 is accordingly set aside and the judgments & decrees of the trial Court as well as the Appellate Court dated 01.06.2000 and 28.07.2003 respectively are restored, affirmed and reiterated. ISLAMABAD, THE 12th of August, 2021 ZR/ * Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Muhammad Nawaz Abbasi Mr. Justice Saiyed Saeed Ashhad CIVIL PETITION NO.378-L OF 2004 (On appeal from the judgment dated 12.12.2003 passed by Federal Service Tribunal, Lahore in Appeal No.514(L)(C.S)/2003) Muhammad Aslam …Petitioner Versus Water & Power Development Authority etc. …Respondents For the Petitioner: Mr. Mehboob Azhar Sheikh, ASC For the Respondents: Mr. Faiz-ur-Rehman, AOR Date of hearing: 23.11.2006 ORDER Iftikhar Muhammad Chaudhry, CJ. - This petition has been filed for leave to appeal against the judgment dated 12.12.2003 passed by Federal Service Tribunal, Lahore in Appeal No.514(L)(C.S.)/2003. 2. It is to be noted that petitioner has been non-suited firstly for the reasons that the appeal filed before the department was barred by time and secondly the memo of appeal was not signed by the petitioner in terms of Rule 6(F) of the Service Tribunal (Procedure) Rules 1974. 3. Learned counsel for the petitioner while arguing the case on the point that the department appeal was not dismissed on limitation but on merits contended that the Tribunal should not have non-suited the petitioner on this score as law laid down by this Court in the case of Anwarul Haq Vs. Federation of Pakistan through Secretary, Establishment Division Islamabad and 13 others (1995 SCMR 1505) would not be attracted. It may be noted that we have gone through the decision of the departmental authority, according to which the appeal filed by him was rejected. Therefore, the presumption would be that it has been rejected both on limitation as well as on merits. Besides it is CP No.378-L of 2004.doc 2 well settled in the case Anwarul Haq (supra) that if departmental appeal is not file within the statutory period the appeal before the Tribunal would not competent. Relevant para is, therefore, reproduced herein below: - "The learned counsel for the petitioner frankly conceded before us that after redesignation of the post he has been performing his official functions as Assistant Executive Engineer. The Tribunal was, therefore, right in holding that after a lapse of 18 years the relief sought by the petitioner for correction of the seniority list was time barred. Reliance was also rightly placed by the learned Tribunal on the judgment of this Court in the case of Chairman, PIAC v. Nasim Malik (PLD 1990 SC 951) that when an appeal before the departmental authority was time-barred, the appeal before the Tribunal was also incompetent on that account.” 3. The above view was reiterated by this Court in the cases of (i) Dr. Amwar Ali Sahto and others v. Federation of Pakistan and others (PLD 2002 SC 101) (ii) State Bank of Pakistan v. Khyber Zaman and others (2004 SCMR 1426) and (iii) N.E.D. university of Engineering and Technology v. Syed Ashfaq Hussain Shah (2006 SCMR 453). 4. Since the petitioner has been non-suited for non-filing of the appeal within time, therefore, without dilating on other grounds which prevailed upon the Tribunal we are not inclined to grant leave to appeal in view of the above settled legal position. 5. Thus for the forgoing reasons we see no force in the petition, which is dismissed, and leave declined. Chief Justice Judge Judge Islamabad, the 23rd November, 2006 Atif/* NOT 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 (,Fgj b 7 CIVIL PETITION NO. 3795 OF 2021 (Against The judgment doted 26.02.202 I of the slamabod High Courl Islamabad possed h P40 No. 57 of 2020) Muhammad Multazom Roza Petitioner Versus Muhammad Ayub Khan and others Respondents For the petitioner For the Respondents Date of Hearing Mr. Atnan Karim Kundi, ASC Syed Rifaqat Hussain Shah, AOR. Mr. Zia ir Rehman Tojik, ASC Mr. M. Shout Jcinjua, AOR. 08.11.2021 ORDER Mapbool Bapar, J. Through the impugned judgment dated 26.02.2021, a learned Judge of the Islamabad High Court has dismissed the petitioner's FAQ against the order passed by the Intellectual Property Tribunal ('the tribunal"), whereby the tribunal returned the petilioner's plaint in Suit No.] of 2020, filed against the infringement of a registered trademark Ranchers", for perpetual injunction restraining the defendants from using the said trademark, as trade name of respondent No.3, and for a preliminary decree of Rs.10 million for causing loss, injury and damage to the goodwill and reputation of the registered trademark of the petitioner and for rendition of accounts by the respondent for the profits wrongfully mode by them from the unlawful use of Ranchers without the consent of the petitioner, and for a decree for payment of the amount that may be found due upon 2 taking accounts under the preliminary decree, as being not maintainable before the tribunal. 2. It was averred that the petitioner and respondent No.] entered into a partnership agreement to conduct business of promoting, developing and managing international franchises. A partnership firm was thus formed and registered by the name of Zakori International ("Zakori International"). Zakori international is currently operating two successful brands in Pakistan namely "Mr. COD" and RANCHERS". "RANCHERS', being an indigenous brand of Zakori International, the trademark "Ranchers" has been registered under the Trade Mark Ordinance 2001 ("the Ordinance 2001 t), in the joint name of the partners, being the petitioner and respondent No.1. It is further stated that under and in terms of a franchise agreement dated 13.10.2015, Zakori International granted to MIs Royal Manor a limited license and franchise for operating a 'Ranchers" Restaurant in Sector 1-8 (Markaz), Islamabad. However the respondent No.1, without the consent of the petitioner, entered, on behalf of Zakari International, into a tripartite Joint Venture Agreement ("JVA") with MIs Royal Manor, and one Afnan Shareef, the Respondent No.2, whereby Royal Manor agreed to take respondent No.2, as its joint venture partner in respect of the franchise restaurants operated by it under the name and style of "Ranchers", whereas Zakori International in terms of the said JVA purportedly undertook to grant master franchising rights regarding "Ranchers" to respondent No.2. The petitioner contended that Zakori International could not have participated in the aforesaid JVA without the consent of the petitioner. It was further contended that by having agreed to extend to respondent No.2, the right of master franchising "Ranchers" unilaterally, and without the consent of the petitioner, the respondent No.2 has clearly infringed the registered trade mark, jointly 3 owned by the petitioner and respondent No.1, against the clear restriction imposed by sub-section (5) of section 24 of the Ordinance 2001. In addition to the above, according to the petitioner, respondent Nos.] and 2, have incorporated a Private Limited Company by the name of 'Ranchers Cafe (Pvt.) Ltd, the respondent No.3, mainly for the some business as is being conducted by Zakori International under its trade mark 'Ranchers". It was contended that the use of the trade mark/name, 'Ranchers", by respondent No.3 company, will create an impression and lead to a belief that the entity is not different from, "Ranchers" jointly owned by the petitioner and respondent No.], and such would "amount to passing off the trade mark registered in the name of the Zokori International". 3. However as noted above, the tribunal through its order dated 1] .3.2020 returned the plaint under Order VII Rule 10 CPC, on the grounds that since the trade mark has not been physically used by respondent No.2 in the course of trade, the suit is not maintainable within the meaning of section 46(1) and (2) of the Ordinance 2001 and that since the dispute is between the respondent No.], as co-owners of a trade mark, any violation of section 24(5) read with section 69 of the Ordinance 2001 cannot be agitated before the tribunal. 4. We have heard the learned counsel and examined the relevant laws. 5. The Intellectual Property Tribunal, has been established under section 16 of the Intellectual Property Organization at Pakistan Act, 2012 ('the IPO Act 2012'). In terms of section 18 of the IPO Act, 2012, all suits and other civil proceedings regarding infringement of intellectual property laws are to be instituted in and tried by the tribunal. The said section further provides that notwithstanding anything contained in any other law the tribunal shall have exclusive jurisdiction W to try any offence under the intellectual property laws. In terms of section 2(h), read with Schedule to the IPO Act 2012, the Ordinance 2001, falls within the definition of intellectual property laws. Whereas sub-section (4) of section 17 of the IPO Act 2012, provides, that subject to sub-section (5) of the said section, no court other than the tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of the tribunal extends under the said Act. (for the sake of clarity it may be mentioned that sub-section (5) of the section 77 simply provides that the provisions of sub-section (4) shotl not affect any proceedings pending before such court immediately before coming into force of the said Act). It may also be relevant to note here that in terms of section 39 of the IFO Act 2012, the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law. 6. The first grievance of the petitioner that emerges from the plain reading of the plaint, and as noted earlier, is that though the petitioner and respondent No.] are the co-owners of the registered trade mark 'Ranchers" and the partnership agreement between the two does not authorize any of them to grant a license to the use of the said trade mark, or assign or charge each other's share therein, and exactly to the some effect is the restriction placed by sub-section (5) of section 24 of the Ordinance 2001, however the respondent No.) without the petitioner's consent granted master franchise rights in respect of the subject trade mark to respondent No.2, which is clearly violative of the above provision and thus in terms of sub-section (6) of section 24 of the said Ordinance which dearly entitles the aggrieved co-proprietor to initiate infringement proceedings in such an eventuality, the petitioner was/is fully competent to institute the proceedings as he did. 5 7. The other grievance as set out in the plaint is that the respondent No.] and respondent No.2. along with two others have incorporated a private limited company by the name and style of "Ranchers Café (P4.) Ltd.", the respondent No.3. It is contended that the name of the company conspicuously bearing the name 'Ranchers' whose principal line of business is the some as that being conducted by the Zakori International under the trade mark/name Ranchers' would lead a consumer into believing that the respondent No.3 company is associated with the Ranchers brand owned by Zakori International, and thus using the name "Ranchers' as above is a clear infringement of the trade mark 'Ranchers" as described/explained by section 40 of the Ordinance 2001, in terms whereof a person infringes a registered trade mark if he uses, in the course of trade, a mark which is identical with or deceitfully similar thereto, in relation to similar goods or services for which the some is registered, whereas sub section (5) of section 40 holds unauthorized use of a registered trade mark as one's own trade name or port of his trade name, as an infringement of the trade mark, and this is what exactly is being complained of by the petitioner. 8. In view of the foregoing, there remains no ambiguity that both kinds of acts of commission complained of by the petitioner before the tribunal have in clear terms been described by section 24 and 40 of the Ordinance 2001, respectively, as infringement of registered trademark and as provided therein are actionable thereunder. The petitioner's case thus undoubtedly falls within the exclusive jurisdictional ambit of the tribunal as discussed and laid down by section 18, 17 and 39 of the lPO Act 2012. 9. Although, as noted above, the respondents' acts and conduct as alleged by the petitioner clearly falls under section 24 and N 6 40 offhe Ordinance 2001 respectively, but for the sake of clarity we may observe here that use of trade mark can also be attributed to the person who has got to the stage where he can be seen objectively to have committed himself to use the mark that is to carrying his intension to use the mark into effect Use of trade mark can therefore be demonstrated also through the intention to offer the goods and services and/or services1which are manifested through preparatory steps which show an objective commitment to using the trade mark, whereas in the instant case the respondents, in addition to having violated specific provisions of Ordinance 2001 have also gone beyond the preparatory steps. We wonder as to where from the question of so called physical use arose. 10. Keeping in view certain observations found in the judgments of the fora below, we feel that a clear exposition with regard to the concept of passing off would be beneficial, and it would be appropriate to reproduce the concept as enunciated in Harvard's Law Review, Volume 68 (1954-1955) on the subject of development in the law - Trade Marks and Unfair Competition, as follows:- Basically a trade mark owner receives protection against use of his mark by another in such away as is likely to lead consumers to associate the other's goods with the trade mark owner. This protection against trade mark infringement, that is, against sale of another's goods as those of the trade mark owner by use of the owner's mark, may be described as protection against passing off',,. The observation, as contained at monograph 1348 at page 765 at Haisbury's the Laws of England. Volume 27 (1913 Edition) in the following words, may also be relevant here:- The right to bring an action for passing off is founded on the some principles as those relating to actions for the 7 misuse of trade names and, in fact, actions for misuse of the trade names of goods are only particular instances of such actions. H. Whereas though in the instant case, the petitioner contended that use of "Ranchers', as part of the company's name 'amount to passing oft the trade mark registered in the name of the Zakori International", however, as noted earlier, has in fact alleged violation of specific restriction imposed by two separate provisions of Ordinance 2001, which are clearly based on infringement of petitioner's trade mark, within the meaning of the said two provisions. 12. It may also be relevant to note that what is described as a passing off action may either be a passing off action simplicitor or an action of infringement of trade mark coupled with passing off. Where the case of passing off action is based on infringement of trade mark, such suit shall necessarily require determination of the question whether there had been any infringement of the trade mark and where infringement of trade mark is alleged the suit must, in view of section 17, 18 and 39 of the IFO Act 2012, be instituted before the tribunal notwithstanding that the allegations in the suit were coupled with the allegation of passing off. 13. In view of the forgoing we convert this petition into an appeal and allow the same, set-aside the impugned judgment and remand the case to the tribunal to proceed therewith in accordance with law. Islamabad, the 81h November 2021 (Acniir Sb.) APPROVED FOR REPORTING'

{'id': 'C.P.L.A.3795_2021.pdf', 'url': ''}

{'id': 'C.P.L.A.3795_2021.pdf', 'url': ''}

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

{'id': 'C.P.L.A.380_2014.pdf', 'url': ''}

{'id': 'C.P.L.A.380_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED MR. JUSTICE FAISAL ARAB MR. JUSTICE SAJJAD ALI SHAH CIVIL PETITION NO. 381-K OF 2019 (Against the judgment dated 18.03.2019 passed by the High Court of Sindh, Karachi in First Appeal No. 14/2015) Nazli Hilal Rizvi …Petitioner(s) VERSUS Bank Al-Falah Ltd and others …Respondent(s) For the petitioner(s): Mr. Muhammad Haseeb Jamali, ASC Mr. Ghulam Rasool Mangi, AOR For the respondent(1): Mr. K.A. Wahab, AOR For the respondent (5): Mr. Liaquat Hussain Khan, ASC Mr. K.A. Wahab, AOR Date of hearing: 07.08.2019 JUDGMENT FAISAL ARAB, J.-Fibercare Specialties, a proprietorship concern of the petitioner’s husband, availed financial facilities from the respondent No.1 bank between the years 2007 and 2010. This business was being run on property situated in Shah Baig Gabool Goth, F.B. Industrial Area,Karachi, owned by the petitioner. To secure the finance availed by petitioner’s husband, this property was mortgaged with the respondent No.1 bank. The last date to retire the debt availed by the petitioner’s husband expired on 30.04.2010 on which date a sum of Rs.3,972,399.47 was due towards principal amount excluding markup. As the business failed to discharge its financial obligation within the stipulated time, even after a lapse of about ten months of the debt becoming due, the respondent No.1 filed CIVIL PETITION NO. 381-K OF 2019 2 suit in the banking court on 11.02.2011 for recovery of principal amount along with markup and cost of funds. 2. The husband and son of the petitioner were both sued as guarantors of the finance provided for the business and she herself was sued as mortgagor as well as guarantor. They all engaged Mr. Farhan Zia Abrar as their advocate to defend them. Leave to defend applications were filed which were dismissed on 14.11.2012. The suit was then decreed for a sum of Rs.4,356,902.58 (Rs.3,972,399.47 being principal amount and Rs.384,503.11 towards markup that accrued upto 30.04.2010). The decretal amount was to be recovered along-with the applicable rate of cost of funds recoverable after the date of default i.e. after 30.04.2010 till recovery is made. None of the three judgment debtors preferred appeal and the judgment and decree passed by the Banking Courtattained finality upon expiry of the period of limitation. 3. In order to seek recovery of the decretal amount through sale of mortgaged property, the respondent No.1 bank moved an application to the Banking Court on 21.10.2013 seeking conversion of the suit into execution proceedings as envisaged under Section 19 (1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 though such conversion automatically takes place under the said Section 19(1) and to that effect it was so stated in the judgment passed by the Banking Court. The Banking Courtthereafter while proceeding with execution of the decree issued notice for attachment of the mortgaged property on 12.02.2014 which was followed by another notice on 17.04.2014 for settlement of proclamation of sale after which on 23.05.2014 a notice for the sale of mortgaged property was issued. All notices were issued at the address on which the judgment debtors were initially served. Thereafter, auction notice inviting bids was published in leading newspapers i.e. daily Jang and Dawn on 06.08.2014. Finally, on 11.08.2014 the mortgaged property was CIVIL PETITION NO. 381-K OF 2019 3 sold in auction for a sum of eleven million rupees as against the forced sale value assessed at Rs.10.344 million. 4. After the property was auctioned, the petitioner moved an application under Order 21 Rule 90 of Code of Civil Procedure on 08.09.2014 seeking to set aside the auction mainly on the grounds of want of notice of the execution proceedings and incorrect appraisal of the mortgaged property. In the application it was claimed that the petitioner was a resident of USA and no notice of execution application was served at her US address and the property worth twenty-one million rupees, having forced sale value of sixteen million rupees was sold for a lesser amount of eleven million rupees. Not convinced with any of the pleas taken by the petitioner, the Banking Court dismissed her application against which the petitioner preferred appeal in the High Court vide impugned judgment which too was dismissed, hence this appeal. 5. Learned counsel for the petitioner argued that the petitioner being a permanent resident of USA ought to have been served at her USA address but neither any notice of the execution proceedings was served upon her nor the value of the mortgaged property was properly ascertained nor all the legal requirements necessary for the auction were fulfilled, therefore, the sale in favour of auction purchaser may be set aside. 6. As to the argument that proper course for auction of the mortgaged property was not adopted, the paper book contains copies of notices that were sent in the execution proceedings to the petitioner at the address on which she was served when summonswas issued in the suit. These notices include notice dated 12.02.2014 for attachment of the mortgaged property, notice dated 17.04.2014 for settling the terms of proclamation of sale and notice dated 23.05.2014 for sale of the mortgaged property. Thereafter, auction notice was also published in two leading CIVIL PETITION NO. 381-K OF 2019 4 newspapers i.e. daily Dawn and daily Jang. With regard to the plea that no notice of execution proceeding was served upon the petitioner at her USA address, the Banking Court in its judgment dated 13.02.2011 had referred to Section 19 (1) of the Financial Institutions (Recovery of Finances) Ordinance 2001 which provides “Upon pronouncement of judgment and decree by a Banking Court, the suit shall automatically stand converted into execution proceedings without the need to file a separate application and no fresh notice need be issued to the judgment-debtor in this regard….”. Section 19 (1) has clearly done away with the general requirement of instituting fresh proceedings for the execution of the decree as provided in the Code of Civil Procedure, hence a clear deviation is intended by the legislature from the general procedure and envisages that after the banking suit is decreed, the proceedings do not come to an end but stand automatically converted into execution proceedings for which no fresh notice is required to be served. Conscious of the provision of Section 19(1), the Banking Court in the last paragraph of its judgment converted the suit into execution proceedings and to avoid any ambiguity in the minds of the parties also stated that no fresh notice would be issued. Henceforth the petitioner and the other co-judgment debtors clearly knew from the judgment of the Banking Court passed on 13.04.2013 that suit proceedings by operation of law stood converted into execution proceedings and no fresh notice would be issued. 7. It is borne out from the record that the petitioner’s address in the suit was her residence in Karachi on which the summons was served and she also filed her leave to defend the said application. It was her obligation to place on record her new address for any future service on her, if at all such service was required by law, which she did not do. Even otherwise, the Banking Court in its judgment dated 13.02.2013 had already put the judgment debtors on notice that the suit stands converted into execution proceedings under Section 19(1)of the Financial Institutions (Recovery of Finances) Ordinance 2001 and no further notice would be issued. It is on account of such conversion that CIVIL PETITION NO. 381-K OF 2019 5 the decree holder did not file separate and independent execution proceedings but filed an application seeking conversion of suit into execution proceedings which had already happened at the time when the judgment was passed by the Banking Court. The learned judge in the High Court also noticed that the petitioner had herself stated in the second recital of the Power of Attorney filed on her behalf by her attorney that her advocate had informed her about the dismissal of her leave to defend application. Mr. Farhan Zia Abrar Advocate who represented the petitioner and other judgment debtors in the suit also continued to appear before the Banking Court even after conversion of suit into execution proceedings that finally culminated in the sale of the mortgaged property.Hence, the petitioner cannot feign ignorance about the periodical developments taking place in the proceedings.Looking from both angles, the question of non-service to the petitioner does not arise at all. 8. From the proceedings of the case it also becomes quite apparent that the petitioner, her husband and her son, being the co-judgment-debtors had every opportunity to prevent the auction of the mortgaged property by coming forward and satisfying the decree right from the day when judgment and decree was passed by the Banking Court in February, 2013 till the auction notice was published in the leading newspapers in June, 2014 yet they chose not to. On the contrary they preferred to sit quietly on the sidelines under the impression that non-issuance of notice to the petitioner at her address in USA, which was never brought on record, would vitiate the auction proceeding and they would continue to enjoy the decretal amount and interject in the proceedings only when the final step in the recovery proceeding was taken. The husband and son of the petitioner who were guarantorsof the finance did not care to pay the decretal amount in order to avoid auction of the mortgaged property. Where the petitioner and the other two co- judgment debtors accepted their financial liability determined by the Banking Court vide judgment dated 13.02.2013 and did not prefer appeal then in order to prevent auction of the mortgaged property the decree ought to have been satisfied but they failed to CIVIL PETITION NO. 381-K OF 2019 6 do so. On the contrary, they enjoyed the decretal amount right from the date of default that occurred way back on 30.04.2010 till the property was auctioned on 11.08.2014 (for about four and half years) under the false notion that non-issuance of notice of execution proceedings at the petitioner’s USA address would be sufficient to get the court auction nullified. This becomes quite evident from the fact that it was only when the property was sold in court auction that the petitioner raised an objection and sought nullification of the sale on the pretext of want of notice and wrong appraisal of mortgaged property. Both the courts below rightly held that no case of want of notice on the petitioner of the execution proceedings was made out as in terms of Section 19(1) of the Financial Institutions (Recovery of Finances) Ordinance 2001 no fresh notice was required for commencement of execution proceedings and power of petitioner’s counsel in any case was on the record to represent her. 9. After dismissal of the leave to defend application,the judgment debtors ought to have anticipated that judgment and decree would be eventually passed for the sale of the mortgaged property, which was ultimately passed and was accepted by not preferring appeal. In such eventuality the only act that could have prevented the sale through auction was payment of the decretal amount for which considerable period of time was at their disposal i.e. eighteen long months but they failed to do so. The executing court, though in terms of Section 19(1) of the Financial Institutions (Recovery of Finances) Ordinance 2001 was not legally obliged to issue notice of execution proceedings, out of abundant caution had issued the same at the petitioner’s address available on record i.e. the address on which she was served in the suit and had filed leave to defend application through her counsel who continued to hold power to represent the judgment debtors throughout proceedings. Thus the petitioner and the rest of the judgment debtors from their own conduct which they demonstrated right from the date when the finance became due on 30.04.2010 till the property was auctioned on 11.08.2014 (four and a half long years) avoided to fulfill their financial obligation towards the respondent CIVIL PETITION NO. 381-K OF 2019 7 bank and enjoyed its money, without realizing that the auction of the mortgaged property in the circumstances was a foregone conclusion. In the circumstances, the learned High Court rightly did not interfere with the findings of the Banking Court and held that the petitioner had notice of the proceedings and inadequacy in the valuation of the forced sale value of the mortgaged property, if any, is not a valid ground to set-aside a court sale. 10. In view of what has been discussed above we find no justification to interfere with the findings of the learned Single Judge of the High Court. We therefore refuse to grant leave and dismiss this petition. JUDGE JUDGE JUDGE Karachi, the 7th of August, 2019 Approved For Reporting Khurram

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CIVIL PETITION NO.3846, 3866 & 3976 OF 2019 1 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 NO.3846, 3866 & 3976 OF 2019 (Against the order dated 16.10.2019 passed by High Court of Sindh at Sukkur, in C.P. Nos.D-765 and D-764/2019) Nazir Ahmed Shaikh (C.P. No.3846/2019) Ghulam Mustafa Hulio (C.P. No.3866/2019) Haji Ghano Khan Jatoi (in C.P. No.3976/2019) …Petitioner(s) VERSUS National Accountability Bureau, Islamabad & others (C.P. No.3846/2019 & 3866/2019) Federation of Pakistan through National Accountability Bureau, Sukkur Sindh (in C.P. No.3976/2019) …Respondent(s) For the Petitioner(s): Mr. Shahab Sarki, ASC Mr. M.S. Khattak, AOR (in C.P. No.3846/2019) Mr. M. Ikram Ch., ASC Syed Rifaqat Hussain Shah, AOR (in C.P. No.3866/2019) Syed Iftikhar Hussain Gillani, Sr. ASC Mr. M. Sharif Janjua, AOR (in C.P. No.3976/2019) For the NAB: Syed Nayyar Abbas Rizvi, Addl. PG NAB. Date of Hearing: 17.12.2019 CIVIL PETITION NO.3846, 3866 & 3976 OF 2019 2 O R D E R QAZI MUHAMMAD AMIN AHMED, J. Declined concessions by the High Court of Sindh vide impugned order dated 16.10.2019, Nazir Ahmad Sheikh, Ex-Taluka Nazim Larkana, through Criminal Petition No.3846 of 2019 alongside Ghulam Mustafa Hulio, Accounts Officer, through Criminal Petition No.3866 of 2019, apprehending arrest, seek bail in anticipation thereto whereas Haji Ghano Khan Jatoi, behind bars, through Criminal Petition No.3976 of 2019, has prayed for admission to post arrest bail; they are accused, arrayed alongside others in NAB Reference No.4 of 2019. With a common backdrop, the petitions are being decided through this single order. 2. Accusation against the petitioners is structured upon a controversy that primarily revolves around a piece of land with a superstructure, located in the heart of Larkana City; identified vide City Survey No.1507/5 A.B.C.D., measuring 1477.7 Sq. Yards. It is admitted at all hands that the land was granted, on lease by the Municipal Committee Larkana, way back in the year 1935 to one Thakur Das who established a cinema thereon under the name and style of Royal Cinema. In the wake of partition, Thakur Das migrated to India in the year 1955, consequent whereupon the property was treated as Evacuee Property, subsequently allotted to one K.S. Naji, under Settlement Scheme. The Municipal Committee asserted claim over the property, decided in its favour on 7.4.1981 in C.P. No.13/1970, however, the superstructure was ordered to remain with the Evacuee Department, leased it out to K.S. Naji who sold out his lease rights to Haji Ghano Khan Jatoi. Larkana Municipal Committee passed a resolution for extension of lease in the year 1993, a motion subsequently withdrawn, whereupon Haji Ghano Khan petitioner moved the High Court of Sindh; vide judgment dated 11.5.1999, the Municipal Committee was directed to consider the matter afresh; it is in continuation thereof that a meeting was convened on 10.12.2001 to carry out resolution for grant of lease for a period of 99 years on a rent of Rs.1020 per sq. yards; resolution had been forwarded to the Secretary Local CIVIL PETITION NO.3846, 3866 & 3976 OF 2019 3 Government, Rural Development, Public Health Engineering & Kachi Abadis Department, Government of Sindh for approval; the issue is pending till date. It is in this background that the petitioners were taken to the task for attempting to dole out in perpetuity valuable property of the local council at a ridiculously low rate. It is alleged that the accused massively benefited from the foul play, however, it is a common ground too that property in question still vests in the local council. 3. It is argued on behalf of Nazir Ahmed Sheikh and Ghulam Mustafa Hulio that the superstructure was under Haji Ghano Khan Jatoi’s occupation prior to their holding the helm and it was in pursuance to a direction issued by no other than the High Court of Sindh that the house carried a resolution in exercise of authority vested in it under the law, subsequently transmitted for approval to the competent authority and as such they cannot be saddled with any criminality of the transaction in the absence of positive proof to the contrary, therefore, their remission into custody would not only be abuse of process of law but would irreparably tarnish their reputation as well. Haji Ghano Khan Jatoi has also pleaded a valid transaction. The learned Law Officer has faithfully defended the reference by arguing that notwithstanding elected/official positions and an earlier lease, the petitioners effectively attempted to deprive the local body of a most valuable piece of land by dishonestly misinterpreting a judicial verdict and as such are not entitled to be released on bail. 4. Heard. Record perused. 5. Reference contains different allegations against accused, eight in number, however, the present petitioners are being blamed for designs on a solitary piece of land, lease whereof was recommended by a resolution carried by the house, albeit with some dissensions, in compliance with a direction issued by the High Court. Plan though possibly woven with sinister motives, as suggested by the learned Law Officer, nonetheless, can neither be viewed as a one man show nor was admittedly viewed as misconduct by the competent authority inasmuch as the remainder signatories have not been taken on board; it has yet to CIVIL PETITION NO.3846, 3866 & 3976 OF 2019 4 see the light of the day; the land continues to vest in the council. Dispatching petitioners into prison, on a subjective belief of their having manipulated the impugned transaction, would be rather harsh in circumstances, particularly when the prosecution has the opportunity to possibly transform allegations into proof during the trial, already in progress. Detaining Haji Ghano Khan Jatoi would be equally inexpedient. Consequently petitions are converted into appeals; allowed; ad interim bails already granted to Nazir Ahmad Sheikh and Ghulam Mustafa Hulio are confirmed on their furnishing bonds in the sum of Rs.One Million with one surety each in the like amount to the satisfaction of the learned trial Court. Haji Ghano Khan Jatoi petitioner shall be released on his furnishing bond in the above terms. While addressing the concern shown by the learned Law Officer at the bar, we feel no hesitation to direct the Secretary Local Government, Rural Development, Public Health Engineering & Kachi Abadis Department, Government of Sindh to take cognizance of the issue. Notwithstanding the resolution passed by the council or swayed by the order of the High Court of Sindh that merely remitted the matter for consideration afresh, he shall faithfully and vigilantly secure the proprietary rights/interests of the local council with regard to the land in question while keeping into account the actual value of the land and fair rent thereof. Copy of this order be also transmitted to the Commissioner Larkana as well. Both the functionaries shall submit a compliance report with all convenient dispatch preferably within two months. JUDGE JUDGE ISLAMABAD 17th December, 2019 Azmat “Not approved for reporting” JUDGE CIVIL PETITION NO.3846, 3866 & 3976 OF 2019 5 CIVIL PETITION NO.3846, 3866 & 3976 OF 2019 6

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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.3874 of 2016 (On appeal from the judgment dated 20.10.2016 passed by the Lahore High Court, Lahore in W.P No.15848 of 2016) Rai Muhammad Khan … Petitioner(s) VERSUS NAB thr. its Chairman and others … Respondent(s) For the petitioner(s): Qazi Misbah-ul-Hassan, ASC Syed Rifaqat Hussain Shah, AOR For the NAB: Mr. Nasir Mehmood Mughal, Spl.P.NAB Date of hearing: 22.3.2017 JUDGMENT Dost Muhammad Khan, J.— Petitioner is seeking leave to appeal against the decision of the Lahore High Court, Lahore dated 20.10.2016, dismissing his bail petition. Arguments of Qazi Misbah Ul Hassan, learned ASC for the petitioner and also of Mr. Nasir Mehmood Mughal, Special Prosecutor, NAB heard in considerable detail and record perused. 2. Briefly, the relevant facts are that, petitioner was Chairman of the Citizens Community Board (CCB), Sheikhupura, when two projects i.e. construction of PCC roads were sanctioned by the Government and allocated Rs.12 millions, while contribution of CCB was Rs.3 millions. Crl.P.3874/16 2 3. It is alleged in the Reference No.30 of 2016, that the petitioner being Chairman, by misusing his status of office, misappropriated an amount of Rs.11.04 million out of 12 millions, allocated by the Government, through fake and bogus completion bills, while in fact no work was done on the site. The amount with the endorsement of District Accounts Office, Sheikhupura, was first transferred to CCB Account and the petitioner then withdrew and deposited in his own account, misappropriating it. 4. The DCO of the District, complained to the Chairman, NAB, on which, the case was referred to the Local NAB and after inquiry and investigation, Reference was filed in the Accountability Court. 5. Learned counsel for the petitioner argued with vehemence that co-accused of the petitioner, namely, Abdul Ghafoor, similarly charged, has been granted bail therefore, the petitioner is entitled to the same concession on the principle of consistence. 6. The SOP, issued by the Chairman NAB, that cases involving corruption or corrupt practices where an amount is less than Rs.100 millions, shall not be taken cognizance by the NAB Authorities, has been violated in this case because the Chairman was duly authorized to issue such instructions under the provisions of NAB Laws, the learned ASC added. He also disclosed at the bar that on this issue, the jurisdiction of the Accountability Court has been challenged through an application and why the trial could not commence because it has yet to be decided. Whether such instructions have the status of statutory law, binding even on the Chairman because in this case he approved the inquiry and investigation into the case, is a question to be decided by the Trial Court and we would not comment upon this issue anymore, lest it prejudice the case of the petitioner. Crl.P.3874/16 3 7. Under the principle of law and justice, each bail petition is to be decided on its own merits and the law applicable thereto, however, this Court cannot remain oblivious of the undeniable fact that the tendency of corruption in every field, has become a threatening danger to the State economy, striking on its roots. The public money, allocated for social sector and economic well being of the poor people, is consistently embezzled/misappropriated at a large scale and why the majority of the population is deprived of essential daily utilities, like pure drinking water, health care and education facilities, etc. It has become the foremost obligation of each and every institution, including the Judicator, to arrest this monster at this stage, before it goes out of proportion, posing threat to the very survival of the State and State economy, therefore, the Courts shall apply the Ani- Corruption laws somewhat rigidly, once on fact the case is made out, at bail stage, against the accused person. Distinction, however, is to be drawn between the ordinary criminal cases and is of corruption on the above analysis and grounds, while dealing with bail matter to an accused person, charged for such like crimes and also at the time of conviction, once the case is proved against him then, Courts are not supposed to show any mercy by taking a lenient view in the matter of sentence. 8. So far as the facts of the case are concerned, we have carefully gone through the impugned judgment of the High Court, which has elaborately dealt with each and every aspect of the case while refusing to grant bail to the petitioner and we do not see any reason much less plausible to interfere in the impugned order and that too in our extraordinary constitutional jurisdiction. Therefore, this petition is dismissed and leave to appeal is declined. 9. As the accused in every case, has a right of speedy trial, therefore, if the Trial Court decides to assume jurisdiction after dealing with the objections of the petitioner then, it has to proceed with the trial, speedily and to decide the same positively within six months under intimation to Additional Registrar Crl.P.3874/16 4 (Judicial) of this Court. Both, the defence and the prosecution, are directed to cooperate with the Trial Court and no unnecessary adjournment shall be allowed to anyone of the parties. These are the detailed reasons for our short order of even date, which is reproduced herein below:- “For the reasons to be followed, leave is declined and petition is dismissed.” Judge Judge Islamabad, the 22nd March, 2017 Nisar/ * Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ma Bandial Mr. Justice Sajjad All Shah Mr. Justice Mansoor All Shah 4 Civil Petitions No. 3950 & 4047 of 2019. (Against the judgment dated 1392019 passed by the High Court of Balochistan Quetta in CR No, 106 of 2014) Muhammad Anwar (decd) through his LRs. etc. Abdul Hameed and others. Versus Essa and others. ... Petit-ioners (CP3950/19) Petitioners (CF 4047/19) Respondents (In both) For the Petitioner(s) Mr. Zahoor-ul-Haq Chishti, ASC (CF 3950/19) For the Petitioner(s) Mr. Kamran Murtaza, Sr. ASC (CF 4047/19) For the Respondent(s) Mr. Mir Aurangzeb, AOR/ ASC (In both) Date of Hearing 12.11.2021 ORDER $Mtad All Shah, T.-. The petitioners seek leave of this Court against the common judgment of Balochistan High Court at Quetta in Civil Revision No. 106 of 2014 whereby the said Court while setting aside the concurrent findings of the Courts below, on the point of limitation, remanded the case for trial on merits, 2. Briefly, the respondents on 23.4.2001 filed a suit against the petitioners seeking cancellation of their lease, consequent mutation and permanent injunction. In the said suit, the cause of action as asserted in para 23 had initially accrued in 1971-72 and thereafter on 27/28/29.07.2000 and thereafter on various dates. The said suit was dismissed on 25.062001 by holding it to be barred by time. The appeal met the same fate. However, on 28.03.2002, the High hile exercising revisional jurisdiction allowed the respondents to bm- CPs 3950 & '1047 of 2019 2 withdraw the suit and to file afresh. It appears that on 18.6.2002, the respondents filed a suit wherein the cause of action was asserted to have arisen in July, 2000 instead of 1971-72 as was asserted in the first plaint. The plaint of the said suit was returned on 2510.2005 for want of jurisdiction. The respondents, thereafter instead of presenting the same plaint to the Court of competent jurisdiction, filed a fresh suit on 27.04.2006 from which these proceedings have emanated. Again the Court of first instance on 18.9.2007 dismissed the suit being barred by time. The respondents instead of filing an appeal before the District Judge filed an appeal before the High Court and the High Court on 15.92011 returned the appeal to the respondents to present it before the District Judge. It appears that on 30.12.2013 the District Judge also dismissed the appeal after affirming the finding of the trial Court. The respondents thereafter invoked the revisional jurisdiction of the High Court and the High Court to our dismay and surprise dealt with the issue of limitation in a very casual and cal manner by holding that "when the court arrives to the conclusion that Justice demands condonation of delay in a given case, the formal written application for condonation of delay is not sine qua non for exercising the discretion in this behalf verbal prayer for condonation of delay may be given effect for safe dispensation of Justice". The Court in the same breath further observed that section 5, 12 and 14 of the Limitation Act empowers the Court to enhance the period of limitation which even otherwise,jagainst substantial justice was a knock out on mere technicality. The High Court consequently through order impugned, by setting aside concurrent findings, remanded the case to the trial Court with the directions to decide it on merits. 3. Learned counsel for the petitioner has contended that in two rounds of litigations, the suit filed by the respondents was found hopelessly barred by time and the High Court brushed aside such findings by holding the dismissal of suit on the ground of limitation as "a technicality". Per ASC the setting aside of concurrent findings of the Courts below in such casual manner cannot be CPS .3950 & 4047 012019 3 sustained It was next contended that the law of limitation was never considered by this Court as a "mere technicahj&" and is to be considered seriously. Per the counsel, the High Court in its revisional jurisdiction while reversing concurrent findings on the question of limitation without assigning any reason simply directed the trial Court to decide the suit on merits which findings could not be Sustafried 4. On the other hand, learned counsel appearing for the respondents could not deny the fact that in the first suit the respondents have in Para 23 of their plaint had mentioned the cause of action to have accrued in 1971-72 and thereafter on 271h July, 2000. However, contended that the order of the High Court was well reasoned and has rightly held that in the circumstances the limitation was a technical aspect and was liable to be ignored. 5. We have considered the contentionsof learned counsel for the respective parties and have perused the record. 6. It appears that in the first round, the suit filed by the respondents was concurrently dismissed by the two Courts by holding it to be barred by limitation and the High Court without setting aside such findings while exercising its revisional jurisdiction allowed the respondents to withdraw the suit with the permission to file afresh. The High Court by allowing such withdrawal in fact tacitly without assigning any reason had set aside such concurrent findings of the two Courts holding the suit to be barred by law which was not permissible as being against the settled principles of law. Though a suit which has been decided or dismissed being barred by law could be allowed to be withdrawn at any time even in an appeal before this Court but after setting aside the judgment and decree on merits. The question arises where a suit is dismissed under Order VII Rule ITt (d), after having been found barred by law as has happened in the instant case, as to whether a plaintiff could be allowed to withdraw the suit at appellate or nal tage with the permission to file afresh. Order VII Rule Ii which •1 - -. - CPs395O&4047 o12019 4 envisages and records the following four categories where the Court could reject a plaint and Rule 13 which provides that rejection of plaint does not preclude presentation of fresh plaint, read as follows:- "Order VII Rule 11: 71. Rejection of plaint: The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of act-ion; (1) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law", Order VII Rule 13: 13. Where rejection of plaint does not preclude presentation of fresh plaint. The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting afresh plaint in respect of the same cause of action". 7. A perusal of rule 11 reveals that it envisages and records 4 categories where the Court could reject a plaint and the first 3 are where the deficiencies in the plaint could be redressed. For instance, under clause (a) where the plaint is rejected on the ground that it does not disclose a cause of action, subject to law of limitation, a fresh plaint could be presented by overcoming the defect and disclosing the cause of action. Likewise, under clause (b) where the plaint is rejected on failures of plaintiff to correct the valuation, again subject to law of limitation, the defect could be removed and a fresh plaint could be presented. In the same manner, under clause (c) if the plaint is rejected on failure of the plaintiff to supply the requisite stamp paper, subject to law of limitation, such defect could be remedied by supplying the court fees. However, where the plaint under clause (d) of Rule 11 is rejected on the ground that the suit is barred by any law, the filing of fresh plaint is not envisaged unless the findings declaring the suit to be barred CPs 3950 & 4047 of 2019 5 by any law are reversed and, therefore, the withdrawal of the suit could not be allowed with the permission to file a fresh. It would of course be unlawful to revive a dead cause without bringing back the suit to life. For this very reason the Lahore High Court substituted rule 13 as reproduced above to the effect that the rejection of plaint on any of the grounds given in clause (a) to (c) in Order 11 shall not on its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. The exclusion of clause (d) appears to be well considered. 8. In the like manner, Order XXIII Rule 1 CPC, which allows the plaintiff to withdraw his suit or abandon part of his claim, empowers the Court to allow such withdrawal with permission to file a fresh suit. However, such permission is to be granted by the Court after satisfying itself and recording reasons that unless such permission is allowed, the suit would fail by reason of some formal defect. The Court can also allow such withdrawal with permission to file a fresh suit in case where the Court is of the view that there are other sufficient grounds for allowing plaintiff to withdraw his suit with the permission to file a fresh suit. A case law study shows that the suit may be allowed to be withdrawn in a case where the plaintiff fails to implead necessary party or where the suit as framed does not lie or the suit would fail on account of misjoinder of parties or causes of action or where the material document is not stamped or where prayer for necessary relief has been omitted or where the suit has been erroneously valued and cases of like nature. It is always to be kept in mind that where such defect could be remedied by allowing amendments, the Court should liberally exercise such powers but within the parameters prescribed by Order VI Rule 17 CPC. Besides while exercising powers under this provision the Court must identify the defect and record its satisfaction that the defect is formal and does not go to the root of the case. It is also to be kept in mind that such withdrawal would not automatically set-aside the judgment and decree which has come against the CPS ?950 &4047 of 2019 6 plaintiff unless such judgment and decree is set-aside by the Court after due application of mind. In the instant case, the suit was concurrently dismissed by the Courts after having been found barred by law/ time, therefore, the High Court had no power to allow withdrawal of the suit with the permission to file a fresh unless it had reversed the concurrent findings on the question of limitation. Even otherwise, if permission is granted for filing a fresh suit under Order XXIII Rule I CPC, then, pursuant to Order XXIII Rule 2, the plaintiff is bound by the law of limitation in the same manner as if the first suit had not been filed, therefore, no fresh cause of action would accrue from the date when such permission was granted by the Court. Reference is made to the cases of Muhammad Saeed Bacha and another vs. Lute Buds/ink Amir and others (2011 SCMR 345). In these circumstances, the second suit filed by the plaintiff was barred by the principle of res-judicata. 9. Coming to the core issue where the High Court in the second round, while setting aside the concurrent findings of the two Courts holding the suit to be barred by time, declared the law of limitation as a "mere technicality" and that the limitation could be condoned on a verbal request, these findings of the Court are in direct conflict with the statutory provisions as well as the case law. 10. It appears that the High Court failed to consider and appreciate that the parameters of discretion in condoning the delay in filing an application, appeal, review or revision etc. are totally different than the powers vested in Court to condone the delay occasioned in filing the suit. To cases falling in the first category; Section 5 of the Limitation Act, 1908 (hereinafter referred to as the "Act") is applicable which vests the Court with vast discretion of condoning delay in cases where the Court is satisfied that the application seeking condonation of delay discloses "sufficient cause" by accounting for each day of delay occasioned in filing the application, appeal, review or revision. On the other hand, the Courts on the original side while trying a suit as required under Section 3 of the Act are bound to dismiss the suit if it is found to be barred by time notwithstanding that CPs 950 & 4047 of 2019 the limitation has not been set up as defense. The Court has no power to condone the delay in filing the suit but could exclude time the concession whereof is provided in Section 4 to 25 of the Act only in cases where the plaintiff has set up in the plaint one of such grounds available in the Act such as disability, minority, insanity, proceedings bona fide before a Court without jurisdiction etc. and not otherwise. In fact, the language used in Section 3 of the Act is mandatory in nature and imposes a duty upon the Court to dismiss the suit instituted after the expiry of period provided,unless the plaintiff seeks exclusion of time by pleading in the plaint one of the grounds provided in Sections 4 to 25 of the Act. Reference can be made to the cases of Ha/i Abdul Karim and others vs. Messrs Florida Builders (Pvt.) Limited (PLD 2012 SC 247) and Hakim Muhammad Buta and another vs. Habib Ahnzad and others (PLD 1985 SC 153). In cases where limitation is not set up in defense and consequently a waiver is pleaded, the Courts notwithstanding such waiver are bound to decide the question of limitation in accordance with law. Reference can readily be made to the case of Ahsan Ali and others vs. District Judge and others (PLD 1969 SC 167). The Court even has no discretion or power to condone the delay in filing the suit on humanitarian grounds or by invoking the principles of equity unless any of the grounds prescribed in the Act is available to the plaintiff and is duly pleaded. The Indian Supreme Court in the case of P.K. Rarnchandran vs. State of Kerala and Others ((1997) 7 5CC 556) held that the "law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds". 11. As to the condonation of delay on oral motion, though in the case of Ghularn Muhammad and another vs. The Bank of Bahawal pur Ltd. (1971 SCMR 148), a two-Member Bench of this Court had approved the condonation of delay on oral motion allowed by the High Court by holding it to be sufficient compliance of Section 5 of the Act but without deliberating on the issue, whereas, in a number of CPs 3950 & 4047 of 2019 8 cases larger Benches of this Court specifically considered this issue and held that an oral submission for condonation of delay does not make a valid justification for condoning the delay in cases even falling under Section 5 of the Act. Reference can readily be made to the cases of Mullah Ahmed vs. Assistant Commissioner, Sibi (1986 SCMR 1624), Commissioner of Income Tax (Investigation) vs. Miss. Shireen Ayub Khan (1988 SCMR 304) and Khan Muhammad vs. Zainab Sibi (2000 SCMR 1227). This view, of course, has a valid legal justification as the party seeking condonation or exclusion of time in terms of Section 5 or Section 3 of the Act has to explain the delay of each and every day through an affidavit and/or justify exclusion of time. It is to be kept in mind that upon expiry of the period of limitation a claimant loses his right to enforce his claim through the Court of law and consequently a right accrues in favour of respondent by operation of law which cannot be lightly disturbed or brushed aside unless "sufficient cause" is shown and accepted by the Court. 12. Perusal of the impugned judgment reflects that contrary to the settled principles, the learned Judge in Chambers without realizing the fact that the Court has no discretion in condoning the delay in filing the suit except on statutory grounds as detailed in the Act and that too when one of such grounds is set up to seek exclusion of time, proceeded to base its judgment by reproducing the word to word commentary annexed to Section 5 of the Act at page 82 of "Limitation Act 1908 by Shoukat Mahmood - 6th Edition" in respect of cases falling under Sections 5, 12 and 14 of the Act. With due respect, the principles laid down in Section 5 of the Act are not at all applicable to the suits, whereas the applicability of Section 12 to suits is only to the extent of excluding the day from which period of limitation is to be reckoned and Section 14 provides for exclusion of time of proceedings bona fide conducted in Court without jurisdiction. Again it was not a case of proceedings before Court without jurisdiction but a case where, after concurrent dismissal of suit on the point of limitation, the suit which stated CPs1395C&1 4047 of 2019 the cause of action to have accrued in the year 1971-72 was withdrawn and filing of fresh suit on the same subject matter by just changing cause of action from 1971- 72 to 27/29.7.2000. 13. The second ground which prevailed with the learned Judge to upset the concurrent findings and to remand the case for trial on merits was that the dismissal of suit on the ground of limitation was a mere technicality. It has been held in numerous judgments by this Court that the Law of Limitation is not a mere technicality and that once the limitation expires, a right accrues in favour of the other side by operation of law which cannot lightly be taken away. Reference can be made to the judgments of this Court in the case of Asad AU vs. Bank of Pun jab (PLD 2020 SC 736), Ghu lam Qadir vs. Abdul Wadood (PLD 2016 SC 712), Abdul Sattar vs. Federation of Pakistan (2013 SCMR 911) and Muhammad Islam vs. Inspector-General of Police (2011 SCMR 8). 14. In the circumstances, the judgment passed by the High Court cannot be sustained, therefore, is set-aside and the concurrent orders of dismissal by the Courts below are maintained. These petitions are converted into appeal and are allowed in the above terms. Islamabad 12.11.2021 A. Rebman (Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE FAISAL ARAB MR. JUSTICE SYED MANSOOR ALI SHAH CIVIL PETITION NO.396 OF 2017 AND C.M.A.NO.1012 OF 2017 (Against the judgment dated 01.12.2016 of the Federal Service Tribunal, Islamabad in Appeal No. 72(P)CS/2015) Secretary Revenue Division / Chairman, FBR and another …Petitioner(s) VERSUS Muhammad Arshad Hilali …Respondent(s) For the petitioner(s): Mr. Imran Fazal, ASC For the respondent(s): Mr. Jehanzeb Raheem, ASC Date of hearing: 26.04.2019 JUDGMENT FAISAL ARAB, J.- The respondent was appointed as Preventive Officer (BS-11) on 19.07.1988 and was posted in Customs House, Karachi. One Sultan Naeem Akhtar was working as Inspector (BS-11) in Collectorate of Customs and Central Excise, Peshawar. They being in the Customs department holding posts in equal grade made a request for mutual transfer, which was accepted in 1991 and the respondent was permanently absorbed as Inspector Customs in Peshawar, while Sultan Naeem Akhtar was absorbed as Preventive Officer and posted in Karachi. 2. In 2011 when FBR circulated the seniority list of the Inspectors of Customs department who were appointed upto the year 1990, the respondent found his name missing. He made representation claiming that as he was appointed as Preventive CIVIL PETITION NO.396 OF 2017 AND C.M.A.NO.1012 OF 2017 2 Officer in the year 1988 he be given seniority in the list of Inspectors from the date when he was initially appointed in 1988 and not from the date of his transfer in 1991. When the FBR issued the final seniority list of Inspectors in 2014, respondent was not given seniority from the date of his initial appointment i.e. from 1988 but from the date of his absorption as Inspector in 1991. He again made a departmental representation seeking his seniority to be reckoned from the date of his initial appointment i.e. 19.07.1988 which was not responded. He then preferred appeal in the Service Tribunal and succeeded in his endeavor by securing declaration that his seniority in the array of Inspectors be reckoned from the date when he was initially appointed in 1988. In granting such declaration, the reason which prevailed with the Service Tribunal was that when the seniority of four Valuation Officers, who were later absorbed in service as Appraisers was reckoned from the date of their initial appointment as Valuation Officer (the posts of Appraisers and Valuation Officers being of the same grade), on the same analogy the respondent could not be discriminated and ought to have been given the same treatment. Against such decision, the Customs department has preferred this petition seeking leave to appeal. 3. Learned counsel for the petitioner argued that the respondent who was working as Preventive Officer in Karachi since 1988 was transferred to Peshawar in 1991 and absorbed on the post of Inspectors on the basis of mutual transfer with one Sultan Naeem Akhtar and not compulsorily transferred at the instance of the department, therefore, the respondent cannot claim seniority in the list of Inspectors from the date of his initial appointment and CIVIL PETITION NO.396 OF 2017 AND C.M.A.NO.1012 OF 2017 3 is entitled to claim seniority only from the date when he was transferred to Peshawar as Inspector. 4. Learned counsel for the respondent, on the other hand, argued that it is a clear case of discrimination as in the case of transfer of four officers of equal grade to another post i.e. from Valuation Officers to Appraisers, their seniority was reckoned from the date of their initial appointment and not from the date of transfer to the new post. When we called upon the counsel for the respondent that keeping aside the plea of discrimination for a moment on what principle of service law respondent claims that his seniority be reckoned from the date when he was initially appointed and not from the date of his transfer, learned counsel referred to paragraph 6 of instructions contained in Serial No. 30, Chapter III Part II of Estacode (1989 edition), which reads as follows:- “6. Seniority on transfer from one office to another.- (i) The instructions in the foregoing paragraphs regulate the position of a deputationist in his parent office. As regards his seniority in the office to which he is transferred, it should be determined in the following manner:- (a) When it is open to the person concerned to accept or refuse an offer of appointment in another office, he should-count his seniority in the new office from the date of his transfer to that office. (b) When a person is compulsorily transferred to another office as a result of conscription, or alongwith the post and his work, he should be allowed to count his previous continuous service in the grade towards seniority in that grade in the new office.” 5. The import of paragraph 6(i)(a) above appears to be quite contrary to what respondent’s counsel intend to advance CIVIL PETITION NO.396 OF 2017 AND C.M.A.NO.1012 OF 2017 4 before us. It clearly provides that where a person is transferred to another office in a situation where it was open to him to accept or refuse such transfer, his seniority was to be reckoned from the date of his transfer to the new office. The only exception to this rule is contained in paragraph 6(i)(b). It states that where a person is compulsorily transferred to another office then he is allowed to count his service in the previous office towards his seniority in his new office. In the case of transfer of four other officers of the department, example of which has been quoted as precedent in the present case, their seniority may have been reckoned from the date of their initial appointment but nothing was brought on the record as to the circumstances in which such transfers had taken place. In the present case, one thing is clear that the respondent sought his transfer to his new office on his own volition on the basis of mutual consent with another officer of the same grade. He was not compulsorily transferred at the instance of the department, hence the recognized practice contained in paragraph 6(i)(a) of Serial No. 30, Chapter III Part II of Estacode (1989 edition) clearly disentitles him to count his previous service towards seniority in the new office. When on a principle of law one upon his transfer is not entitled to seek seniority from the date of his initial appointment then if someone else has been granted seniority in violation of such principle, which too is not clear, the same cannot be made a ground to raise the plea of discrimination. 6. In the circumstances, we are of the view that the Service Tribunal committed error when it accepted the plea of discrimination and granted seniority to the respondent from the date of his initial appointment in violation of the principle laid CIVIL PETITION NO.396 OF 2017 AND C.M.A.NO.1012 OF 2017 5 down in paragraph 6 of Serial No. 30 of Estacode for the simple reason that he could only be allowed to count his previous service towards seniority had he been compulsorily transferred at the instance of the department and not at his own. This petition is, therefore, converted into appeal and allowed and the impugned judgment is set aside. CMA No. 1012/2017 7. As the main petition has been converted into appeal and allowed, this CMA for stay has become infructuous and is disposed of accordingly. JUDGE JUDGE Islamabad, the 26th of April, 2019 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice tjmar Ata Bandial, CJ Mr. Justice Syed Mansoor Ali Shah Mrs. Justice Ayesha A. Malik Civil Petition No.397 of 2022 and CMA 751 of 2022 in C.P. No.397 of 2022 [Against judgment dated 16.2.2022 passed by the Islamabad High Court Islamabad in WP No.527/20221 Muhammad Faisal Vawda Petitioner(s) Versus Election Commission of Pakistan, through . .Respondent(s) its Secretary and others For the Petitioner(s) : Mr. Wasim Sajjad, Sr. ASC Mr. Moiz Ahmed, ASC For Respondent No.1 : Mr. Sajeel Sheryar Swati, ASC Mr. Muhammad Arshad, DG (Law) Ms SaimaTa.riqJanjua, DD (Law) ECP For Respondent 6 Mr. Farooq H. Naek, Sr. ASC On Court's Notice: Ch. Aamir Rehman, Addl. AGP. Date of Hearing 25.11.2022 ORDER UMAR ATA BANDIAL, W. The petitioner, Muhammad a Faisal Vawda, at the very outset, stated before the Court today that he regrets the claim of renunciation of US Nationality in his nomination papers filed for NA-249 Karachi on 07.06.2018. He states that he had applied for such renunciation before the date of filing of his nomination papers. However, in fact his Certificate of Loss of Nationality of the US was issued on 25.06.2018. As a result of the CF No.397 of 2022. etc. 2 difference in the dates he was actually disqualified from contesting the election on the date when he filed his nomination papers for the election of MNA under the provisions of Article 63(1)(c) of the Constitution. Consequently, the affidavit which he filed alongwith his nomination papers made an erroneous statement. He regrets that and accepts that he stood disqualified to be elected to the National Assembly. Although the petitioner was elected to the office of Senator of Pakistan in the year 2021, however, to demonstrate good faith, hereby he resigns from that office. 2. We have heard the learned counsel for the parties and have perused the record. The Election Commission of Pakistan ("ECP") has, in exercise of its powers under Article 218(3) of the Constitution of the Islamic Republic of Pakistan 1973 ("Constitution") read with Section 8(c) of the Elections Act 2017, decided upon the matter of pre-election qualification and disqualification of the petitioner, in respect of his election as a member of the National Assembly as well as a member of the Senate. The ECP has declared the petitioner disqualified for both elections on account of his filing a false affidavit as to his citizenship of a foreign country under Article 63(1)(c) and 62(1)(f) of the Constitution, and has also withdrawn the notification whereby he had been declared the returned candidate for a seat of the Senate. 3. As per the judgments of this Court in Muhammad Salman v. Naveed An/urn (2021 SCMR 1675) and Zulfigar I/ Bhatti v. E.C.P (CA. No. 142 of 2019 decided on 02.11.2022), the CF No.397 o12022, etc. 3 ECP has no jurisdiction under Article 218(3) of the Constitution read with Section 8(c) or 9(1)of the Elections Act 2017 to inquire into and decide upon the matter of pre-election qualification and disqualification of a returned candidate. Therefore, the decision of the ECP was without jurisdiction. The Islamabad High Court found that the petitioner was disqualified pursuant to the case reported as Speaker. National Assembtz, of Pakistan, Islamabad and others. v. Habib Akram and others (PLD 2018 SC 678) for submitting a false affidavit hence no declaration was required. Therefore, it was concluded that the consequences given in case reported as Sarni ULlah Baloch and others v. Abdul Karim Nousherwani and others (PLD 2018 SC 405) would follow. By finding that a formal declaration by a court of law was not required to disqualify the petitioner under Article 62(1)(f) of the Constitution, the impugned judgment has in its paras 11, 12 and 13 therefore misconstrued both the Habib Akram case and the Sarni Ullah Baloch case. Resultantly, the impugned judgment is legally not sustainable. The present petition filed under Article 185(3) of the Constitution is therefore converted into appeal and the same is allowed by setting aside both the said decisions. 4. The petitioner states before the Court that he regrets his claim of renunciation of the U.S. nationality at the time of filing his nomination papers for the election of NA-249, Karachi, on 07.06.2018. He further states that he had then initiated the process for such renunciation, but the "Certificate of Loss of Nationality of the U.S." was issued to him on 25.06.2018. He admitted that he was disqualified from contesting the election under Article 63(1)(c) of the Constitution, on the date when he had filed his nomination papers for the election of NA-249, CP No.397 of 2022, etc. 4 Karachi, and that his affidavit filed with the nomination papers thus contained an erroneous statement, which he regrets. In order to demonstrate his good faith in remorse for his mistake, he undertakes that he will resign from the office of the member of the Senate to which was elected. 5. In view of the said statement and undertaking of the petitioner, we are of the opinion that we need not proceed further in the matter in the peculiar facts and circumstances of the ease. The petitioner shall be bound to comply with his undertaking and shall take immediate steps to present his resignation to the Chairman, Senate, in accordance with law. It is clarified that the petitioner shall not be considered disqualified in any subsequent election, on the basis of the instant matter. Chief Justice 2 - - Judge Judge Islamabad, 25th November, 2022. Not approved for reporting Iqba(

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Munib Akhtar CIVIL PETITION NO.398-L OF 2018 A/W CIVIL PETITIONS NOS.584-L, 671-L TO 675-L, 774-L, 775-L, 812-L, 815-L, 911-L, 912-L, 913-L, 919-L, 984-L, 985-L, 1005-L, 1148-L, 1684-L, 1688-L TO 1690-L, 1729-L, 1796-L, 1812-L, 1821-L TO 1827-L, 1850-L TO 1854-L, 1859-L, 1860-L, 1878-L, 1887-L, 2038-L, 2085-L, 2086-L, 2090-L, 2091-L, 2129-L AND 3480 OF 2018. (On appeal from the judgments/orders passed by Lahore High Court, Lahore dated: 08.12.2017 passed in W.P. No.37295 of 2016, 77996, 113697, 92863, 104518 of 2017 29.03.2018 passed in W.Ps. No.187666 of 2018 19.04.2018 passed in ICAs No.192176, 192180, 192217, 183611 of 2018 11.05.2018 passed in W.Ps. 201969, 205022 of 2018 11.06.2018 passed in W.P. No.212424, 218052, 215434 of 2018 12.06.2018 passed in W.P. No.217297 of 2018 13.12.2018 passed in W.Ps. No.89391, 97850 of 2017 18.12.2017 passed in W.P. No.121977 of 2017 22.12.2017 passed in W.P. No. 28023, 21680, 96042, 97089, 97184 of 2017 22.09.2017 passed in W.P. No. 34945 of 2017 13.02.2018 passed in W.Ps. No.158509 of 2018 27.02.2018 passed in W.P. 123944 of 2017, 152517, 152606, 166893 of 2018 01.03.2018 passed in W.Ps No.21606 of 2012 12.03.2018 passed in W.P. No.122208 of 2018 19.04.2018 passed in ICA No.183611, 192187, 192191, 201079 of 2018 07.06.2018 passed in ICA No.218132, 218135, 218129 of 2018 11.06.2018 passed in ICA No.218125, 218127, 217617 of 2018 25.06.2018 passed in ICAs No.218128, 218134, 218137, 218131 of 2018 26.06.2018 passed in ICA No. 220510 of 2018 28.06.2018 passed in ICA No.222208, 222316 of 2018) The Commissioner Inland Revenue, Zone-III, RTO-II, Lahore … Petitioner (in all cases) VERSUS M/s Hamza Nasir Wire & others …Respondent (in CP.398-L of 2018) M/s Riaz Bottlers Pvt. Ltd. & others …Respondent (in CP.584-L of 2018) M/s Allied Marketing Pvt. Ltd. & others …Respondent (in CP.671-L of 2018) 2 CP.398-L OF 2018, etc. M/s Sefam Pvt. Ltd. etc. & others …Respondent (in CP.672-L of 2018) M/s Benz Industries Ltd. & others …Respondent (in CP.673-L of 2018) M/s Anmol Paper Mills Pvt. Ltd. & others …Respondent (in CP.674-L of 2018) M/s Qarshi Industries Pvt. Ltd. etc. …Respondent (in CP.675-L of 2018) M/s Haleeb Foods Ltd. etc. …Respondent (in CP.774-L of 2018) Janana De Mulucho Textile Mills Ltd. etc. …Respondent (in CP.775-L of 2018) M/s Hi-Tech Edible Oils Pvt. Ltd. etc. …Respondent (in CP.812-L of 2018) M/s Faran Honda Agency, etc. …Respondent (in CP.815-L of 2018) M/s Hunza Sugar Mills Ltd. & others …Respondent (in CP.911-L of 2018) M/s Ghani Gases Ltd. & others …Respondent (in CP.912-L of 2018) M/s Service Industries Ltd., & others …Respondent (in CP.913-L of 2018) M/s Hi-Tech Edible Oils Pvt. Ltd. & others …Respondent (in CP.919-L of 2018) M/s Sui Northern Gas Pipelines Ltd. etc. …Respondent (in CP.984-L of 2018) M/s Sui Northern Gas Pipelines Ltd. etc. …Respondent (in CP.985-L of 2018) M/s Umer Packages & others …Respondent (in CP.1005-L of 2018) M/s Trade Linker Trading Co., & another …Respondent (in CP.1148-L of 2018) M/s Trade Linker Trading Co., & another …Respondent (in CP.1684-L of 2018) M/s Allied Marketing (Pvt.) Ltd. …Respondent (in CP.1688-L of 2018) M/s Qarshi Industries Pvt. Ltd. & another …Respondent (in CP.1689-L of 2018) 3 CP.398-L OF 2018, etc. M/s Riaz Bottlers Pvt. Ltd. & another …Respondent (in CP.1690-L of 2018) M/s Sefam Pvt. Ltd. & another …Respondent (in CP.1729-L of 2018) M/s Suntube Pvt. Ltd. …Respondent (in CP.1796-L of 2018) M/s Suntube Pvt. Ltd …Respondent (in CP.1812-L of 2018) M/s Ilyas Steel Re-Rolling Mills Ltd. & others …Respondent (in CP.1821-L of 2018) M/s Ejaz Brother Steel Furnace & others …Respondent (in CP.1822-L of 2018) M/s Crown Pottery and others …Respondent (in CP.1823-L of 2018) M/s Ghulam Rasool Steel Furnace & others …Respondent (in CP.1824-L of 2018) M/s Haq Bahu Steel Mills Ltd. & others …Respondent (in CP.1825-L of 2018) M/s Ejaz Brothers Steel Furnace & others …Respondent (in CP.1826-L of 2018) M/s Bilal Ceramics & others …Respondent (in CP.1827-L of 2018) M/s Z.A. Food Industry & others …Respondent (in CP.1850-L of 2018) M/s Dura Ceramics & others …Respondent (in CP.1851-L of 2018) M/s Al-Haram Ceramics and others …Respondent (in CP.1852-L of 2018) M/s Pakistan Ceramics and others …Respondent (in CP.1853-L of 2018) M/s Tayyab Pottery & others …Respondent (in CP.1854-L of 2018) M/s Janana De Malucho Textile Mills Ltd., etc. …Respondent (in CP.1859-L of 2018) M/s Magna Textile Industries Pvt. Ltd. & others …Respondent (in CP.1860-L of 2018) M/s Trend International & another …Respondent (in CP.1878-L of 2018) 4 CP.398-L OF 2018, etc. M/s Punjab Beverages Co. Ltd. …Respondent (in CP.1887-L of 2018) M/s Huda Sugar Mills Ltd. & others …Respondent (in CP.2038-L of 2018) M/s Faran Honda Agency & others …Respondent (in CP.2085-L of 2018) M/s Masood Fabrics Pvt. Ltd. & others …Respondent (in CP.2086-L of 2018) M/s Kasur Corporation & others …Respondent (in CP.2090-L of 2018) M/s D.G. Khan Cement Co. Ltd. & others …Respondent (in CP.2091-L of 2018) M/s Rohi Entertainment Co. Ltd. & others …Respondent (in CP.2129-L of 2018) M/s Ejaz Spinning Mills Ltd. & another …Respondent (in CP.3480 of 2018) For the petitioners Mr. Ibrar Ahmed, ASC. Mr. Sarfraz Ahmed Cheema, ASC. Ch. Muhammad Zafar Iqbal, ASC. Mrs. Kausar Parveen, ASC. Dr. Tariq Masood, Member Legal FBR Dr. Ishtiaq Ahmad, Director Legal For the respondent (s) (in CPs.671-L, 672-L, 675-L & 815-L of 2018). Mr. M. Ajmal Khan, ASC. For the respondent (s) (in CPs.3480 of 2018) Syed Rifaqat Hussain Shah, AOR. For the respondent (s) (in CP.2091-L of 2018) Mr. Imtiaz Rashid Siddiqui, ASC. Mr. Shehryar Kasuri, ASC. Date of hearing 20.11.2018. JUDGMENT: UMAR ATA BANDIAL, J. Three petitions bearing CP No.398-L of 2018, CP No.584-L of 2018 and CP No.674-L of 2018 challenge a common judgment by the learned Single Judge of the Lahore High Court dated 08.12.2017 5 CP.398-L OF 2018, etc. (“impugned judgment”) which sets aside the show cause notices, inter alia, dated 14.11.2016 (in some petitions) issued to the respondent-taxpayers under Section 11(3) of the Sales Tax Act, 1990 (“Act”) by Officers of Inland Revenue (“OIRs”), namely, Deputy Commissioners of Inland Revenue (“DCIRs”) and Assistant Commissioners of Inland Revenue (“ACIRs”). The notices alleged non-payment or short payment of sales tax by the respondent-taxpayers during the tax periods mentioned therein. The remaining petitions assail other judgments that follow the aforenoted impugned judgment and the case law cited by it. 2. The impugned judgment notes that the Federal Board of Revenue (“FBR”) vide notification dated 21.07.2016 (“Notification-I”), appointed eight Commissioners of Inland Revenue heading different Zones functioning under the Corporate Regional Tax Office, Lahore to exercise powers and perform functions as conferred under the Act and the Rules made thereunder. Such authority was reposed by Notification-I in relation to specified cases or classes of cases of tax payers falling within the respective territorial jurisdictions of the Commissioners. It is observed by the impugned judgment that rather than exercising such powers themselves, inter alia, the CIR Zone-III, RTO-II, Lahore (“CIR”), vide notification dated 01.08.2016 (“Notification-II”) authorised his subordinate OIRs, heading twelve different units in his Zone, to exercise their powers and perform their 6 CP.398-L OF 2018, etc. functions as conferred by the Act and its subordinate Rules in relation to specified cases or classes of cases of tax payers falling within their territorial jurisdictions. 3. In conclusion, the learned High Court held that Notification-II by the CIR delegated the powers that had been assigned to him by the FBR vide Notification-I. Such delegation by the CIR under the subsequent Notification-II to the OIRs constituted sub-delegation without the sanction of law. Therefore, in the presence of Notification-I whereunder the CIR was himself a delegate of the FBR, the further delegation of powers and functions by the CIR through Notification-II in favour of his nominated subordinate OIRs was unlawful and void. This rendered the latter Notification-II issued by the CIR and the impugned show cause notices issued by the OIRs (DCIRs and ACIRs) to be of no legal effect. For facility of reference the excerpts of the two Notifications that are germane to the instant controversy are produced below: “Notification-I “GOVERNMENT OF PAKISTAN REVENUE DIVISION FEDERAL BOARD OF REVENUE ****** F.No.57(2)Jurisdiction/2016/95882-R Islamabad, the 21st July, 2016 NOTIFICATION (Inland Revenue Operations Wing, FBR) Subject:- JURISDICTION OF CHIEF COMMISSIONER AND COMMISSIONERS INLAND REVENUE CORPORATE REGIONAL TAX OFFICE, LAHORE. In exercise of the powers conferred under section 209 of Income Tax Ordinance, 2001, section 30 and section 31 of the Sales Tax Act, 1990, Section 29 of the Federal Excise Act, 2005, and in 7 CP.398-L OF 2018, etc. supersession of all earlier orders and notifications of the Board in respect of jurisdiction, the Federal Board of Revenue is pleased to direct that: i) The Chief Commissioner Corporate RTO, Lahore shall exercise the powers and perform functions under Income Tax Ordinance, 2001, the Sales Tax Act, 1990, the Federal Excise Act, 2005 section 7 of Finance Act, 1989 (V of 1989), Wealth Tax Act, 1963 (Repealed) read with section 3 of the Finance Act, 2003 (I of 2003), and Workers Welfare Fund Ordinance, 1971, in respect of the persons or classes of persons or cases or classes of cases as mentioned in column (4) of notification; and shall perform all administrative functions and coordination with Federal Board of Revenue, and ii) The Commissioners of Inland Revenue specified in column (2), shall exercise the powers and functions, as specified in column (3), in respect of the persons or classes of persons or cases or classes of cases as specified in column (4) of the Table below: This notification shall take effect from August 01, 2016. TABLE S.No. Commissioner Inland Revenue Powers & Functions Jurisdiction (1) (2) (3) (4) 01. Commissioner Inland Revenue (Zone-I), Corporate RTO, Lahore. …. …. 02. Commissioner Inland Revenue (Zone-II), Corporate RTO, Lahore. …. …. 03. Commissioner Inland Revenue (Zone-III), Corporate RTO, Lahore. The Commissioner Inland Revenue shall exercise powers and perform functions as conferred under: (a) Income Tax Ordinance, 2001 and Rules made there under; (b) The Sales Tax Act, 1990 and Rules made there under; (c) The Federal Excise Act, 2005 and Rules made there under; (d) Section 7 of the Finance Act, 1989 (Act No. V of 1989) as amended from time to time (e) Workers Welfare Fund Ordinance, 1971. 1. All cases or classes of cases persons or classes of persons of corporate sector falling within the limits of civil Districts of Lahore, Kasur, Okara, Sheikhupura & Nankana Sahib of the Province of Punjab other than the cases assigned to LTU Lahore RTO-II, Lahore or any other zone of Corporate RTO, Lahore whose names begin with alphabet ‘R’ ‘S’ ‘T’ ‘U’ ‘V’ ‘W’ ‘X’ ‘Y’ & ‘Z’. 2. All cases of Directors of companies as specified in paragraph 1 above. 3. Monitoring and Enforcement of taxpayers under the Provisions of the laws and rules (specified in Column 3 of the table) in respect of all withholding agents existing in the jurisdiction of Zone-III of Corporate RTO, Lahore. 4. All cases of statutory agents/representatives 8 CP.398-L OF 2018, etc. assessable under sections 172 and 173 of the Income Tax Ordinance, 2001 as specified in paragraphs 1, 2 & 3 above. 5. Cases or classes of cases or persons or classes of persons or areas specifically assigned by FBR/Chief Commissioner from time to time. 04-08 Commissioner Inland Revenue in 5 other Zones of Corporate RTO, Lahore .... ….” (emphasis supplied) “Notification-II “Commissioner Inland Revenue Zone-III, Regional Tax Office-II, Lahore. No.01/III Dated: 01.08.2016 ORDER Subject:- JURISDICTION OF OFFICERS OF INLAND REVENUE, OTHER THAN THE ADDITIONAL COMMISSIONERS, IN RESPECT OF ZONE-III, REGIONAL TAX OFFICE-II, LAHORE. In pursuance of Federal Board of Revenue’s notification bearing No.57(2)Jurisdiction/2016/95896-R dated 21st July, 2016 and in exercise of the powers conferred under sub-section (1) of section 210 of Income Tax Ordinance, 2001, sub-section (3) of section 30 of the Sales Tax Act, 1990, sub-section (1B) of section 29 of the Federal Excise, Act, 2005, the Commissioner Inland Revenue, Zone- III, Regional Tax Officer-II, Lahore is pleased to direct that the Officers of Inland Revenue specified in column (2) of the Table-1 below, shall exercise the powers and perform the functions, under the said Laws, as specified in column (3) of the Table-I below, except the powers and functions mentioned in Table-II below, in respect of the persons of classes of persons of areas (excluding cases or classes of cases or persons or classes of persons for the areas assigned to any other officer of Inland Revenue, Regional Tax Office-II, Lahore) as specified in column (4) of the Table below. 2. This order shall take effect from 01.08.2016. TABLE S.No. Officer of Inland Revenue Powers & Functions Jurisdiction (1) (2) (3) (4) 1. Officer of Inland Revenue Unit-01 The Inland Revenue Officer shall exercise powers and perform functions as conferred under: (a) Income Tax Ordinance, 2001 and Rules made there under; (b) The Sales Tax Act, 1990 and Rules 1. All cases or classes of cases persons or classes of persons of non-corporate sector other than the cases assigned to LTU Lahore, Corporate RTO, Lahore or any other Zone of RTO-II, Lahore falling within the territorial jurisdiction of the Wahga Town of the Civil District of Lahore of the Province 9 CP.398-L OF 2018, etc. made there under; (c) The Federal Excise Act, 2005 and Rules made there under; (d) Section 7 of the Finance Act; 1989 (Act No. V of 1989) as amended from time to time (e) Workers Welfare Fund Ordinance, 1971. of the Punjab and under: a) Wahga Town UCs/ Areas (Bhaseen, Munawan, Nihala); 2) All Cases or classes of cases, persons of non- corporate sector falling within the limits of the civil district of Lahore of the Province of Punjab, other than the cases assigned to LTU, Lahore, Corporate RTO, Lahore of any other Zone of RTO-II, Lahore which are engaged in the following businesses in the following categories: a) Non Residents; 3. All cases of individuals, members of AOP as specified in paragraph 1 & 2 above. 4) All cases of statutory agents /representatives assessable under Section 172 and 173 of the Income Tax Ordinance, 2001 as specified in paragraphs 1, 2 & 3 above. 5) Cases or classes of cases or persons or classes of persons or areas specifically assigned by FBR/Chief Commissioner from time to time. 02-12 Officer of Inland Revenue Unit 02- 12 … …” (emphasis supplied) 4. We have heard the erudite arguments of the learned counsel for the parties whose names are recorded in the title of this judgment, and have carefully perused the impugned judgment along with the available record. The substantive findings of the learned High Court are considered in our opinion that follows. 5. To our minds, the main controversy in these petitions has arisen from the interpretation assigned to Section 30 of the Act, specifically sub-sections (1) and (3), by the learned High Court. Therefore, it is reproduced below for reference: 10 CP.398-L OF 2018, etc. “30. Appointment of Authorities.— (1) For the purposes of this Act, the Board may, appoint in relation to any area, person or class of persons, any person to be: (a) a Chief Commissioner Inland Revenue; (b) a Commissioner Inland Revenue; (c) a Commissioner Inland Revenue (Appeals); (d) an Additional Commissioner Inland Revenue; (e) a Deputy Commissioner Inland Revenue; (f) an Assistant Commissioner Inland Revenue; (g) an Inland Revenue Officer; (h) a Superintendent Inland Revenue; (i) an Inland Revenue Audit Officer; (ia) an Inspector Inland Revenue; and (j) an officer of Inland Revenue with any other designation. (2) The Chief Commissioner Inland Revenue and Commissioner Inland Revenue (Appeals) shall be subordinate to the Board and Commissioner Inland Revenue shall be subordinate to the Chief Commissioner Inland Revenue. (2A) The Chief Commissioners Inland Revenue shall perform their functions in respect of such persons or classes of persons of such areas as the Board may direct. (2B) The Commissioners Inland Revenue shall perform their functions in respect of such persons or classes of persons or such areas as the Chief Commissioner, to whom they are subordinate, may direct. (3) Additional Commissioner Inland Revenue, Deputy Commissioners Inland Revenue, District Taxation Officer Inland Revenue, Assistant Commissioner Inland Revenue, Assistant Director Inland Revenue, Superintendent Inland Revenue, Inland Revenue Audit Officer, Inland Revenue Officer, Inspector Inland Revenue, and Officer of Inland Revenue with any other designation shall be subordinate to the Commissioner Inland Revenue and shall perform their functions in respect of such persons or classes of persons or such areas as the Commissioners, to whom they are subordinate, may direct; …” 6. From a close reading of Section 30 ibid, it becomes clear that the said provision vests the FBR with the exclusive 11 CP.398-L OF 2018, etc. power to appoint OIRs while also conferring a concurrent power on the FBR and CIRs to delineate the territorial (area) and personal (persons or classes of persons) jurisdiction of OIRs. Such powers are granted to the FBR by virtue of Section 30(1) of the Act and to the CIRs by Section 30(3) ibid. These powers of the FBR and CIRs are recognised by the learned High Court in the impugned judgment. 7. It is plain then that the primary purpose of Section 30 ibid is to ensure a smooth and efficient working of the OIRs operating under the Act. It does not vest the FBR or the CIRs with any authority to confer functions and powers on the OIRs as they deem fit. In fact, the powers and duties of the OIRs have been fixed by Section 31 of the Act itself which is produced below: “31. Powers.-- An officer of Inland Revenue appointed under Section 30 shall exercise such powers and discharge such duties as are conferred or imposed on him under this Act; and he shall also be competent to exercise all powers and discharge all duties conferred or imposed upon any officer subordinate to him: Provided that, notwithstanding anything contained in this Act or the rules, the Board may, by general or special order, impose such limitations or conditions on the exercise of such powers and discharge of such duties as it deems fit.” (emphasis supplied) 8. Accordingly, the scheme of the Act is that only FBR is competent to appoint OIRs in a graded hierarchy of eleven different posts and to fix their jurisdictional 12 CP.398-L OF 2018, etc. parameters. Similarly, under the concurrent power [Section 30(3)], the CIRs have the authority to fix the jurisdictional parameters of OIRs who are subordinate to them in rank. However, the powers and duties of such OIRs are, pursuant to Section 31 ibid, specified and fixed by the Act and include the powers and duties of their subordinate officers. Significantly, Section 2(18) of the Act has defined all officers appointed by the FBR under Section 30(1) of the Act as OIRs: “2. Definitions.– In this Act, unless there is anything repugnant in the subject or context, -- … (18) “officer of Inland Revenue” means an officer appointed under Section 30.” 9. To reiterate, on a plain reading of Section 2(18), Section 30 and Section 31 of the Act, what becomes clear is that all OIRs appointed by the FBR can only exercise the powers and discharge the duties vested in them by the Act. These include the powers and duties of their subordinate officers. Accordingly, after designating the posts of OIRs including the respective delineation of their territorial and personal jurisdiction by the FBR and the CIRs, the appointed OIRs perform and exercise the functions, powers or duties vested in them by the Act. Neither the FBR nor the CIR have authority under the Act to select or limit the functions, powers and duties that may be exercised by their subordinate OIRs. 10. In the above background, the question arises whether the disputed show cause notices were issued by the 13 CP.398-L OF 2018, etc. OIRs under Section 11(3) of the Act in the valid exercise of their powers. It would be appropriate at this stage to reproduce Section 11 ibid: “11. Assessment of Tax and recovery of tax not levied or short-levied or erroneously refunded. – (1) Where a person who is required to file a tax return fails to file the return for a tax period by the due date or pays an amount which, for some miscalculation is less than the amount of tax actually payable, an officer of Inland Revenue shall, after a notice to show cause to such person, make an order for assessment of tax, including imposition of penalty and default surcharge in accordance with sections 33 and 34: Provided that where a person required to file a tax return files the return after the due date and pays the amount of tax payable in accordance with the tax return alongwith default surcharge and penalty, the notice to show cause and the order of assessment shall abate. (2) Where a person has not paid the tax due on supplies made by him or has made short payment or has claimed input tax credit or refund which is not admissible under this Act for reasons other than those specified in sub-section (1), an officer of Inland Revenue shall, after a notice to show cause to such person, make an order for assessment of tax actually payable by that person or determine the amount of tax credit or tax refund which he has unlawfully claimed and shall impose a penalty and charge default surcharge in accordance with sections 33 and 34. (3) Where by reason of some collusion or a deliberate act any tax or charge has not been levied or made or has been short- levied or has been erroneously refunded, the person liable to pay any amount of tax or charge or the amount of refund erroneously made shall be served with a notice requiring him to show cause for payment of the amount specified in the notice. (4) … (4A) … (5) No order under this section shall be made by an officer of Inland Revenue unless a notice to show cause is given within five years, of the relevant date, to the person in 14 CP.398-L OF 2018, etc. default specifying the grounds on which it is intended to proceed against him and the officer of Sales Tax shall take into consideration the representation made by such person and provide him with an opportunity of being heard: Provided that order under this section shall be made within on hundred and twenty days of issuance of show cause notice or within such extended period as the Commissioner may, for reasons to be recorded in writing, fix provided that such extended period shall in no case exceed ninety days: Provided further that any period during which the proceedings are adjourned on account of a stay order or Alternative Dispute Resolution proceedings or the time taken through adjournment by the petitioner not exceeding sixty days shall be excluded from the computation of the period specified in the first proviso. … ” (emphasis supplied) It may be noticed that, while the Act confers multiple powers on OIRs, the provisions of Section 11 ibid vests powers on such officers specifically in two respects, namely, the assessment and recovery of tax. Thus all OIRs of different grades appointed under Section 30(1) of the Act possess the power to issue show cause notices under Section 11 ibid. Consequently, the impugned show cause notices were issued by the OIRs competently under Section 11(3) ibid in aid of proceedings commenced for recovery of tax. 11. In the light of the above discussion, the basic issue requiring determination concerns the legal effect of the Notification-I issued by the FBR. The learned High Court in the impugned judgment has observed that by issuing Notification-I, the FBR has specifically ordered only CIRs to 15 CP.398-L OF 2018, etc. exercise the powers conferred by the Act, including the issuance of show cause notices to taxpayers under Section 11(3). Therefore, by issuing Notification-II the CIR has erroneously sub-delegated these powers to his subordinate OIRs. As a result, the notices issued to the respondent taxpayers are null and void because these were issued by an unauthorised statutory authority. The relevant portion from the impugned judgment is produced below: 8. … The tenor of Notification-I and Notification-II also shows that FBR intended for the Chief Commissioners and Commissioners of Inland Revenue to perform all administrative functions and coordination as given in the Column-4 of the Table in those notifications. Therefore, to that extent the Commissioner’s power to confer those functions on officers subordinate to him stood taken away and his power to do so in respect of the subject matter of Notification-I and Notification-II has been curtailed. This effectively means that in respect of the persons or classes of persons or cases or classes of cases as specified in Notification-I only the Commissioner of Inland Revenue mentioned in these Notifications will exercise the power and those functions cannot be delegated by those Commissioners of Inland Revenue. This is the most appropriate purposive interpretation which could be placed upon a holistic consideration of the Notifications I & II and the orders made by the Commissioners Inland Revenue. Unless this is done it will be tantamount to undermining the authority and the intent of the FBR and will throw into complete disarray the hierarchycal structure of the FBR. This is also evident from the use of the term “shall” in the Notification-I by which it has been specifically stated that the Commissioners of Inland Revenue shall exercise the powers and functions as specified in column 3 of Notification- I. It is reiterated that if the Notification-I had not been issued by FBR, there was no impediment in the way of the Commissioner Inland Revenue to prescribe functions to be performed by officers of Inland Revenue subordinate to him in case sub- section(3) of section 30 of the Act, 1990. However, since a notification indeed has been issued by FBR for the exercise of powers under Section 30 of the Act, the ineluctable conclusion is that FBR intended those powers to be exercised by the Commissioners of Inland Revenue to the exclusion of all other officers of Inland Revenue 16 CP.398-L OF 2018, etc. and that intent of FBR cannot be set at naught by the respective Commissioners Inland Revenue by further delegating those powers. …” (emphasis supplied) 12. To fortify his finding, the learned Single Judge also quoted para-17 of a judgment by the Islamabad High Court reported as Zaver Petroleum Corporation Ltd. Vs. Federal Board of Revenue (2016 PTD 2332) which opines as follows: “17: It is, therefore, obvious from the above definitions that the three expressions are distinct and separate. The power or jurisdiction conferred on an officer of Inland Revenue precedes the performance of functions. The conferment of power or jurisdiction is a pre-condition for the performance of functions. By no stretch of the imagination does subsection (3) of section 30 empower the Commissioner to confer power or jurisdiction. However, a Commissioner pursuant to subsection (3) can assign persons or areas in respect of the officers specified therein for the purpose of the performance of functions with regard to the scope of the power and jurisdiction already conferred on such officers. Such officers, in order to perform their respective functions, have to be vested with power or jurisdiction. In the instant case the learned counsel appearing on behalf of the Department have not been able to show any provision of the Act of 1990 which empowers the Commissioner to issue the order dated 23-01-2014 and further delegate the powers and jurisdiction conferred upon him or her by the Board pursuant to the order dated 21- 01-2014. The reliance of the Commissioners on the notification dated 01.07.2010 is misplaced as the same does not confer the power of adjudication under section 11 of the Act of 1990.” 13. It may be observed that while both High Courts have arrived at the same conclusion, they have done so for reasons that are not entirely consistent. The judgment passed by the Lahore High Court held that the presence of Notification-I in the field created a bar against the issuance of Notification-II by the CIR. This is because in Column (3) of Notification-I the FBR delegated its powers and functions to 17 CP.398-L OF 2018, etc. CIRs, therefore, these functions and powers could not be sub- delegated by the CIR to his subordinate OIRs. However, it was observed by the learned High Court that if Notification-I had not been in force, then the CIR had the authority under Section 30(3) of the Act to issue Notification-II prescribing functions of his subordinate OIRs subject to the limits of territorial and personal jurisdiction. 14. In our considered view, the said finding is flawed. It has wrongly been assumed that simply because the FBR in exercise of its authority under Section 30(1) of the Act has assigned territorial and personal jurisdiction to CIRs for the exercise of their functions and powers under the Act, the latter were prevented from exercising their statutory power under Section 30(3) of the Act. The impugned judgment does not give any reasons for such a reading of Section 30(1) and (3) of the Act. In fact, on a perusal of Section 30(3) it becomes clear that the said provision operates independently of Section 30(1) of the Act. Nowhere does Section 30(3) restrain the CIRs from delineating the territorial and personal jurisdiction of their subordinate OIRs. The conferment of power under Section 30(3) on the CIRs is meant to efficiently organise the team of officers subordinate to them. In the present case this includes the fixing of territorial and personal limits of each of the twelve subordinate OIRs in Zone-III. 18 CP.398-L OF 2018, etc. 15. By disallowing distribution of functions by the CIR, the impugned judgment expects all such functions to be performed by the CIR himself. Apart from rendering the subordinate OIRs redundant, the other immediate consequence of the impugned finding is that the CIR is disabled from exercising his administrative and supervisory functions under the Act. For instance under Section 45A(4) of the Act, the CIR can call for and examine the record of any proceedings under the Act or Rules pending before his subordinate OIRs to examine its legality or propriety. However, if the CIR is personally performing all the functions under Section 11 of the Act (as would be the case if the interpretation of the impugned judgment is adopted), then he will be prevented from exercising his supervisory power under Section 45A(4) of the Act. This is because the CIR cannot possibly supervise himself. Similarly under Section 25(2) of the Act, the CIR can authorise an OIR to conduct an audit. However, if the view of the learned High Court is accepted then there is no competent statutory authority specified in the Act to authorise the conduct of an audit under Section 25(2) ibid. The same analysis applies to Section 47 of the Act which provides for a reference to be filed by a subordinate OIR before the High Court on the authorisation of the CIR. Upon a careful evaluation, the finding of the learned High Court for the CIR to perform all functions of the OIRs under the Act is erroneous. 19 CP.398-L OF 2018, etc. 16. It may also be observed that the impugned judgment assumes that by specifying the limits of the territorial and personal jurisdiction of CIRs in Notification-I, the FBR has assigned its own powers and functions to the CIRs. The distribution and assignment of functions is undertaken by the FBR in the exercise of its statutory power under Section 30(1) of the Act which provision does not contemplate the delegation of any of the FBR’s own powers. We have already observed in para-8 (supra) that the officers that may be appointed in eleven different grades by the FBR under Section 30(1) are all OIRs under the definition given in Section 2(18) of the Act. Hence the FBR is the competent authority for appointment of OIRs and for specifying their jurisdictional limits under Section 30(1) ibid. But the FBR is itself neither included in the category of such officers nor thereby becomes one. Since the FBR is not an OIR it does not possess the powers of assessment and recovery of tax vested in OIRs by Section 11 of the Act. If it does not possess these powers then it cannot delegate such powers. There is a well- settled principle of Law: “nemo dat quod non habet” (no one can give what he does not have). There is no reason why the same rule should not apply to the delegation of functions and powers. Indeed, Jowitt’s Dictionary of English Law (5th Edn) has defined delegation to mean: “Delegation: Entrusting another with a power to act in the place of those who depute him.” 20 CP.398-L OF 2018, etc. Accordingly, the FBR does not derive its power of assessment or recovery of tax from Section 11 of the Act. Equally, the Act does not provide for the delegation of FBR’s powers to CIRs nor does Notification-I expressly or impliedly delegate any powers of the FBR to the CIRs. As there has not been any delegation of its powers by FBR to CIRs, therefore, the finding of sub-delegation in the impugned judgment is merely an illusion. Consequently, the said finding in the impugned judgment is faulty. 17. In so far as the impugned judgment has quoted from the Islamabad High Court in the Zaver Petroleum case (supra), we may briefly consider that view. It is apparent from the quoted excerpt that the said decision treats the performance of a function of an office to be different from the exercise of a power and duty vested in such office. Therefore, it has been deemed necessary that conferment of power and jurisdiction upon a statutory authority must precede the assignment of functions to such an authority. The learned Judge has relied to a great extent on this distinction between functions and powers to quash the disputed show cause notices. There is no cavil with the proposition that to exercise the functions of an office a statutory functionary must possess the relevant powers. However, what was perhaps not highlighted to the learned Court was that the exercise of powers forms part of the performance of the functions of an office. Therefore, when functions of an office are allocated by 21 CP.398-L OF 2018, etc. a competent instrument, the powers appurtenant thereto under the law stand vested in the appointee for exercise thereof. 18. On the point that exercise of powers by a statutory functionary form part of the functions of his office, reference is made to the following definitions: “Corpus Juris Secundum – Volume 37. Page 1397: Function: it is not always clear what is meant by the use of this elastic and indefinite word. It is derived from a word which signifies to perform, and, when relating to an office, has reference to the powers and duties vested in the office by the authority creating it. Stroud’s Judicial Dictionary – 9th Edn.: Function: includes a power to do anything that is calculated to facilitate, or is conducive or incidental to, the exercise of a function.” (emphasis supplied) This Court in the case of Nazar Hussain Vs. State (PLD 2010 SC 1021) has also interpreted the expression ‘functions’ to include the exercise of powers: “11: The powers/actions of the President under Article 45 of the Constitution are part of his “functions” and are to be exercised in accordance with the advice of the Cabinet or the Prime Minister.” 19. There is also a more recent judgment of this Court reported as Zahid Javed Vs. Tahir Riaz (PLD 2016 SC 637) which has considered the expression ‘functions’ but in a different context. The question in that case was whether the quasi-judicial power of the Chancellor of the University (Governor of the Province) was exercisable independently or on the binding advice of the Chief Minister/Cabinet under 22 CP.398-L OF 2018, etc. Article 105(1) of the Constitution. It was held that such quasi- judicial power could only be exercised independently by the Chancellor and not on the advice of the Executive. It was further observed that powers, functions and duties were analogous albeit that in the context of exercise of quasi- judicial power, these could neither be delegated nor be exercised on the instructions of a third party. The relevant para is produced below: “37. … In the foregoing paras, we have discussed that the term “Quasi Judicial Power” refers to powers which cannot be delegated and are to be exercised by the Persona Designata mentioned in the statute. Such powers, functions or duties can neither be delegated to any other person or authority nor can be exercised on the recommendation of any other authority or person. The powers, functions and duties provided under the scheme of the Act are to be performed or discharged by the person or authority designated by the statute and none other. …” (emphasis supplied) The above quoted excerpt is consistent with the ratio laid down in the Nazar Hussain case (supra) since both judgments hold that unless otherwise specified the exercise of powers form part of the functions of an office. This is also the opinion of the impugned judgment which negates the view that powers and functions of a statutory office are independent and removed from one another. Consequently, the impugned judgment has relied on an incompatible reason as the basis for its finding. 20. Therefore, in the light of our discussion that there could not have been any delegation of the power of issuance of show cause notice in relation to assessment and recovery 23 CP.398-L OF 2018, etc. of tax by the FBR, which is actually conferred upon the OIRs by Section 11 of the Act, it is plain that the exercise of such powers by the OIRs forms a part of their functions under the Act. Accordingly, the opinion that Notification-I is the only source of vesting of powers in OIRs is incorrect. This view overlooks the effect of Section 31 of the Act and the proper meaning of the term ‘functions’ used in Section 30(2A) to (3) ibid. The impugned judgment has therefore failed to correctly appreciate the law discussed above. As a result, it is set aside. Accordingly, all these connected petitions are converted into appeals and allowed. JUDGE Islamabad, 20.11.2018. Irshad Hussain/Meher LC JUDGE 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.3988 of 2022 AND CMA No.676 of 2023 Ghulam Mehmood Dogar Petitioner(s) VERSUS Federation of Pakistan through Secretary Government of Pakistan, Cabinet Division, Islamabad and others Respondent(s) For the Petitioner(s) : Mr. Abid S. Zuberi, ASC For the Federation : Barrister Shehzad Atta Elahi, Attorney General for Pakistan Ch. Aamir Rehman, Addl.AGP Sajid-ul-Hassan, Section Officer, Establishment Division For Punjab Government : Malik Waseem Mumtaz, Addl.AG, Pb. Mr. Sattar Sahil, AAG, Pb. On Court’s Call : Mr. Sikandar Sutlan Raja, Chief Election Commissioner Zafar Iqbal Hussain, Spl. Secretary, Election Commission of Pakistan Ms. Samia Tariq Janjua, Dy. Director (Law), ECP Date of Hearing : 16.02.2023 O R D E R This is an application (CMA No.676 of 2023) under Order XXXIII Rule VI of the Supreme Court Rules, 1980 for placement of additional documents on record. Subject to all just and legal exceptions, the application is allowed. 2. Pursuant to our orders dated 02.12.2022 and 25.01.2023, the learned Attorney General for Pakistan as well Civil Petition No.3988 of 2022 - 2 - as an Additional Advocate General, Punjab have appeared. The learned Attorney General for Pakistan has pointed out that a notification had been issued for repatriation of the petitioner (Ghulam Mehmood Dogar) to the Federal Government which had been suspended by a two member Bench of the Federal Service Tribunal at Lahore vide order dated 10.11.2022. However, another two member Bench of the same Tribunal had suspended the said order through a subsequent order dated 24.11.2022 which was challenged before this Court through the instant CPLA. The order dated 24.11.2022 was suspended by this Court vide order dated 02.12.2022. He maintains that the Federal Government has nothing to do with the latest transfer of the petitioner. He points out that the Notification dated 23.01.2023 regarding transfer of the petitioner with a direction to report to the Services & General Administration Department (S&GAD), Government of Punjab, Lahore for further orders has been issued by the Governor of Punjab. 3. We have asked the learned Additional Advocate General, Punjab how such transfer has been ordered considering the fact that in terms of Section 230 of the Election Act, 2017 (“the Act”), there is a specific bar on the caretaker Governments against transfers/postings of public officials unless it is considered expedient and that too after approval of the Election Commission of Pakistan (“ECP”). The learned Additional Advocate General has submitted that the Civil Petition No.3988 of 2022 - 3 - transfer had been undertaken after seeking approval of the ECP. 4. In order to clarify the position of the ECP, we asked the Chief Election Commissioner (“CEC”) to appear before us in the matter. The CEC appeared and stated that the ECP had deliberated upon the issue of transfers and postings and had issued guidelines/policy for transfers/postings to be undertaken by the caretaker Governments such guidelines were sent to the Provincial Governments. He submitted that a request was received from the Government of Punjab for transfer of the petitioner and permission for such transfer was granted by the ECP. He maintained that the ECP is committed to hold free and fair elections in accordance with law and the Constitution and in order to fulfil its mandate to hold free and fair elections where necessary it has permitted transfers/postings in exercise of its powers under Section 230(2)(f) of the Act. 5. He was not in a position to explain to us without availability of the relevant record whether the case of the petitioner was considered by the ECP separately and if a specific order had been passed after considering the question of expediency. He undertakes to file the requisite documents including minutes of the meeting in which this matter and/or the policy/guidelines for transfers/postings by the caretaker Governments were to be permitted. Let copies of the relevant record be placed on the file alongwith its detailed report. We asked the CEC whether he was aware of the fact that the Civil Petition No.3988 of 2022 - 4 - matter of transfer of the petitioner was sub judice before this Court and interim orders had been passed. The worthy CEC stated that such fact was not brought to his notice either by the Government of Punjab or by the functionaries of the ECP. 6. During the course of arguments it has been submitted that transfers and postings under the facts and circumstances of this case have a direct reference to the elections which are required to be held within 90 days of the dissolution of the Provincial Assembly of Punjab. It was submitted that although transfers/postings were being undertaken, the election date had not been announced which constitutes violation of Article 224(2) of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”). The worthy CEC submitted that the ECP was committed to fulfil its constitutional obligations however it lacked jurisdiction to announce a date for the elections which, according to him, fell within the domain of the Governors of the respective Provinces in the case of Provincial Assemblies. He maintained that the Governor of Punjab had not announced the date on the ground that since the Assembly had not been dissolved on his order, he had no jurisdiction to give the election date and the ECP was not empowered under the Constitution to announce a date. He also maintained that the ECP has moved an application before the Lahore High Court for clarification of its judgment dated 10.02.2023. The High Court rendered a judgment directing the ECP to immediately announce the date of election of the Punjab Civil Petition No.3988 of 2022 - 5 - Provincial Assembly after consultation with the Governor of Punjab, being the constitutional Head of the Province to ensure that the elections are held not later than 90 days as per the mandate of the Constitution. 7. We note that the Provincial Assembly of Punjab stood dissolved on 14.01.2023 pursuant to the Advice of the Chief Minister, Punjab dated 12.01.2023. As such, elections to the Punjab Provincial Assembly are required to be held within 90 days of the said date in terms of Article 224(2) of the Constitution. However, no progress appears to have taken place in this regard and there is a real and eminent danger of violation of a clear and unambiguous constitutional command. 8. In view of the fact that this matter is not before us in the present lis, we are not inclined to pass any order in this regard in view of the principle of law laid down by this Court in its judgment reported as Suo Motu Case No.4 of 2021: In the matter of (PLD 2022 SC 306). We are, however, of the view that the matter brought to our notice during these proceedings raises a serious question of public importance with reference to enforcement of Fundamental Rights conferred by Chapter-1 of Part-II of the Constitution. Considering the fact that unless timely steps are taken to remedy the situation, there is an eminent danger of violation of the Constitution which we are under a constitutional, legal and moral duty to defend. We therefore consider it a fit case to refer to the Hon’ble CJP to invoke the suo motu jurisdiction Civil Petition No.3988 of 2022 - 6 - of this Court under Article 184(3) of the Constitution, who may if he considers appropriate after invoking jurisdiction under the said Article constitute a Bench to take up the matter. Let the office place this file before the Hon’ble CJP for appropriate orders. 9. To the extent of Civil Petition No.3988 of 2022 alongwith all miscellaneous applications, the matter shall be taken up tomorrow i.e. 17.02.2023. Judge Islamabad 16.02.2023 ZR */ Not approved for reporting Judge

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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.4029, 4070, 4092, 4110, 4111, 4112 & 4131 of 2019 (Against order dated 5.11.2019 passed by High Court of Sindh at Sakhar in C.Ps. Nos.D-364/2019, D-365/2019, D-1408/2016, D-837/2016,D-892/2016,-D1905/2016,D-1825/2016,D-241/2015 & D-2088/2014, respectively) Mir Muhammad & another (in C.P. No.4029 of 2019) Tariq Hussain (in C.P. No.4070 of 2019) Sher Muhammad (in C.P. No. 4092 of 2019) Ayaz Ahmed Soomro (in C.P. No. 4110 of 2019) Ali Gul Phull (in C.P. No. 4111 of 2019) Ghulam Nabi (in C.P. No. 4112 of 2019) Ghulam Sarwar (in C.P. No. 4131 of 2019) …Petitioner(s) Versus NAB through its chairman & others (in all cases) …Respondent(s) For the Petitioner(s): Mr. Muhammad Munir Paracha, ASC Syed Rifaqat Hussain Shah, AOR (In C.P. No.4029/2019) Mr. Shahab Sarki, ASC Mr. M.S. Khattak, AOR (In C.P. No.4070, 4131/2019) Mr. Aftab Alam Yasir, ASC (In C.P. No.4131/2019) Mr. Qasim Mir Jat, ASC/AOR (In C.P. No.4092/2019) Syed Qalb-i-Hussain, ASC Mr. M.S. Khattak, AOR (In C.P. No.4110-4112/2019) For the NAB: Syed Nayyar Abbas Rizvi, Prosecutor General NAB. (in all cases) Date of hearing: 26.11.2019 Civil Petition Nos.4029, 4070, 4092, 4110, 4111, 4112 & 4131 of 2019 2 ORDER Qazi Muhammad Amin Ahmed, J. Declined by the High Court of Sindh, the petitioners seek bail in anticipation to their arrest in NAB Reference No.1 of 2019, filed in pursuance to direction dated 20-1-2016 by the High Court of Sindh to initiate an inquiry/ probe into the alleged misappropriation of funds in execution of Annual Development Plan of Irrigation (E&W) Khairpur for the years 2013-14, 2014-15. It turned out that except for some partial work, no work was executed at all; loss to the exchequer was calculated as Rs.8,93,03,470. 2. Sher Muhammad, Ayyaz Ahmed Somro, Ali Gul Phull and Ghulam Nabi are officials of the Irrigation Department whereas Meer Muhammad, Sodoro, Ghulam Sarwar and Tariq Hussain, being contractors, have been arrayed for their connivance in the scam to defeat the exchequer. 3. Learned counsel for the petitioners are in a unison; their arguments include execution/completion of projects as per codal requirements; according to them, it is evident from the survey/inspection report itself. The bottom line is that the projects were executed in the year 2014 and, thus, there was no occasion down the road in the year 2018, that too, in the month of August when the canal ran in full swing, to physically detect any flaw/deficiency in the executed work. Mr. Muhammad Munir Paracha, ASC went a step further to argue that his client never applied for the project and was instead unsuspectingly impersonated by someone else; according to him, no amount ever landed in his account and was, thus, blameless; malafide is lurking behind the intended arrest, concluded the learned counsel with one voice. The learned Law Officer has faithfully contested the pleas by arguing that there was ample technical and documentary evidence to inescapably frame the petitioners with the charge; he has prayed for dismissal of the petitions. 4. Heard. Record perused. 5. It was on a complaint alleging violation of rules as well as embezzlement in the project that the High Court of Sindh directed a probe, on the basis whereof, physical verification by the experts found non-execution of various planks of the project as well as partial completion of the work, found much less than the required Civil Petition Nos.4029, 4070, 4092, 4110, 4111, 4112 & 4131 of 2019 3 standards. In this backdrop, malafide cannot be conceivably attributed to the initiation of proceedings against the petitioners, in absence whereof, they cannot claim judicial protection in a prosecution that otherwise sans relief of bail. While refusing bail to the petitioners, the learned High Court has directed the Accountability Court to conclude the trial within a period of three months requiring the accused to cooperate in the conclusion thereof, an option to conveniently vindicate their position sooner rather than later. Grant of pre-arrest bail is an extraordinary remedy, essentially rooted into equity, a judicial power to be cautiously exercised with a view to protect the innocent from the horrors of abuse of process of law, in prosecutions initiated by considerations and for purposes stained with the taints of malafide; this judicial protection is not to be extended in every run of the mill criminal case, with pleas structured on bald denials and parallel stories. View taken by the learned High Court being well within the remit of law does not call for interference. Petitions fail. Dismissed. Leave refused. Judge Judge Judge Islamabad 26th November, 2019 Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITION NO.405/2020 (Against judgment dated 09.12.2019 passed by Lahore High Court (Rawalpindi Bench) in Writ Petition No.275/2018) National Saving Central Directorate, Islamabad through its DG & another … Petitioner(s) Versus Muhammad Farooq Raja … Respondent(s) For the Petitioner(s) : Molvi Ijaz ul Haq, DAG Mr. Saghir Ahsan Farooqi, Joint Director (CDNS) Mr. Fareed Nasir, Law Officer, National Savings For the Respondent(s) : Mr. Zafar Mehmood Mughal, ASC Date of Hearing : 02.11.2020 …. ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J: - Civil petition seeking leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 against the judgment dated 09.12.2019 passed by Lahore High Court, Rawalpindi Bench in Constitutional Petition No.275/2018. 2. Brief facts of the case are that the respondent is born national of Pakistan who migrated to Denmark and as such at present he is permanent resident of Denmark while enjoying status of dual nationality. National Saving Centre Rawalpindi introduced a profit generating scheme under the title of “Bahbood Saving Certificate Scheme” (here-in-after referred to as) the“Scheme”. Though it was a profit scheme, but with special emphasis for senior citizens attaining the age of 60 years or above CP No.405/2020 National Savings Central Directorate Islamabad Vs, Muhammad Farooq Raja 2 or widows unless, attains the status otherwise after re-marriage. The respondent deeming himself an eligible person to avail the benefits of said scheme invested rupees three millions in aforesaid scheme without any reservation at the part of the petitioner authority. The respondent continued to enjoy the benefit accrued to him in lieu of the purchase of scheme. As a consequent, he withdrew his monthly profit when it was intimated by the petitioner authority that the respondent was not eligible person to avail the benefits of said scheme on the basis of dual nationality. As a consequence, he was duly apprised by the petitioner authority to submit an application for irregular investment against the profit he already availed. It was further informed that the petitioner authority has transferred the amount of the respondent in regular profit scheme even without seeking any consent from him. The said avenue shown by the authority was agitated by the respondent with the petitioner authority; however, respondent was declined redressal of his grievance by the petitioner. The respondent being aggrieved readily approached “Wafaqi Mohtasib” with a complaint which was duly entertained and after due process it was acceded to in favour of the respondent. The direction issued by “Wafaqi Mohtasib” in favour of respondent proved futile exercise. Ultimately respondent had no other option, except to file constitutional petition before Lahore High Court, Rawalpindi Bench. The said constitutional petition was entertained and decided by learned Single Bench of High Court vide order dated 09.12.2019. The gist of the said order is that the respondent is declared to be an eligible person to avail benefit of the “Scheme”. Being aggrieved by the order of learned Single Bench, the petitioner filed the instant petition before this Court. 3. At the very outset, it has been argued by the learned Deputy Attorney General that the scheme issued by National Saving Centre was CP No.405/2020 National Savings Central Directorate Islamabad Vs, Muhammad Farooq Raja 3 exclusively designed for a particular section of society. Contends that according to rule 5 of “Bahbood Saving Certificate Rules, 2003, twofold criteria was laid down which includes:- (i) Senior citizen aged 60 years or above. (ii) Widow if (she has not changed her status after re-marriage) Contends that the sole purpose was to provide an incentive to those persons falling in these categories. Further contents that respondent never qualified to purchase the bonds and benefit accrued in consequence of the same as the respondent was disentitled due to his dual nationality. Finally argued that impugned judgment is not sustainable in the eye of law as the question of dual nationality was not discussed by the learned Single Bench. He sought leave against the order. 4. On the other hand, the contentions raised by the learned Deputy Attorney General are vehemently controverted by the learned counsel for the respondent. The crux of the arguments advanced by the learned counsel for the respondent is that primarily it was the duty of the petitioner to scrutinize all legal requirements prior to issuance of bonds enabling him to avail the benefits of the said scheme. Contends that at belated stage, the respondent cannot be deprived of the advantages of the said scheme which is hit by doctrine of promissory estoppel in all fairness and equity and as such any action at a belated stage by the petitioner is contrary to the dictates of justice. 5. We have heard the learned Deputy Attorney General as well as learned counsel for respondent and gone through the record. There is no denial to this fact that the respondent being a national by birth is also holding nationality of Denmark, as a consequent he is enjoying status of dual nationality. National Saving Centre, Rawalpindi introduced profit generating scheme with high rate but it was CP No.405/2020 National Savings Central Directorate Islamabad Vs, Muhammad Farooq Raja 4 solely designed to provide a special relief to senior citizens and widows. The criterion laid down by the petitioner authority is clearly mentioned in rule 5 of “Bahbood Saving Certificate Rules 2003” duly framed by the Federal Government. Rule 5 is reproduced as under:- “5. A certificate may be purchased by a single widow only.” Rule 5 was substituted vide notification vide notification No. F.12(1)DM- 11/2003-243 dated 20th January, 2004 which is reproduced as under:- “5. A certificate may be purchased by any of the following namely:- (a) A citizen of Pakistan aged sixty years or above: and (b) A single widow so long as she does not re-marry.” It was further substituted vide notification No. 25(1)GS-1/2005-1273 dated 23rd June, 2008 which reproduced as under:- “A certificate may be purchased by any of the following citizens of Pakistan namely:- (a) a senior citizen aged sixty years or above. (b) a single widow so long as she does not re-marry and (c) two eligible persons as in clause (a) and (b) in their joint names:- (i) payable to the holders jointly or payable to either with the written consent of the other (joint class-A); and (ii) payable to either (Joint class-B)”. It was further substituted vide notification No.25(1)GS-I/2020-1350 dated 1st August, 2011 and the words “Citizens of Pakistan” was inserted in clause (a). However, rule 8 deals with any profit or payment which have been made in contravention of these rules. Rule 8 is reproduced as under:- “8. Any profit or payment which may have been made in contravention of these rules or by mistake shall be refunded to the Government on demand and in the event of failure to refund, may (in addition to other remedies for the recovery thereof by the Government) be deducted from any money payable by the Government to the person who received the profit or payment or from her estate, or be recovered as arrears of land revenue.” Rule 8 was substituted vide notification No. F.25(1)GS-I/2010-1350 dated 1st August, 2011 which is reproduced as under:- CP No.405/2020 National Savings Central Directorate Islamabad Vs, Muhammad Farooq Raja 5 “8. Any profit or principle payment which may have been made in contravention of these rules or by mistake shall be refunded to the Government in lump-sum and in the event of failure to refund the amount, shall be deducted from any money payable by the Government to the person who received the profit or principal payment. In case no money is payable by the Government to the person(s), (in addition to other remedies for the recovery thereof by the Government), the recovery shall be got effected from his or her or their estate, or be recovered as arrears of land revenue.” The respondent under the impression that he is eligible to purchase bonds duly issued by the petitioner under the scheme applied for the same, in response to the acceptance shown by the petitioner, he invested an amount of rupees three millions in the said scheme as a bonafide claimant. The incentive arising out of the said investment was extended in favour of the respondent in accordance with the rules framed under “Bahbood Saving Certificates Rules 2003”. During smooth continuation of said scheme in favour of the respondent, on one fine morning, petitioner intimated respondent that now he cannot claim the privileges of scheme as during scrutiny of the record, it has transpired that according to rule 5 of “Bahbood Saving Certificate Rules 2003, he was ineligible to avail said scheme. He was further informed that authority of his own has converted the amount of three millions affixed under the scheme into regular investment even without the consent of the respondent. The respondent was further intimated to deposit the amount incurred out of the profit scheme till it was scrutinized that respondent was not competent to purchase the same because of dual nationality. The act of the petitioner was agitated by the respondent before the petitioner authority but it proved without any success. The respondent made a representation to “Wafaqi Mohatasib” for the redressal of his grievance. As a consequent, a direction was issued by the said office to the petitioner to resolve the issue of the respondent in accordance with law. The petitioner did not paid any heed to the direction issued by said office, hence, the respondent had no other CP No.405/2020 National Savings Central Directorate Islamabad Vs, Muhammad Farooq Raja 6 option, except to file constitutional petition against the petitioner for resolution of his grievance. 6. We have noticed that the petitioner was under incumbent duty to scrutinize the status of the respondent prior to issuing acceptance which has accrued a right in favour of respondent, any slackness at the part of the petitioner at belated stage cannot be burdened to the respondent and the same is hit by principle of locus poenitentiae. In a similar case reported as (PLD 1992 SC 207) “The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another Vs. Jalaluddin” this court while adjudicating the matter has held which is reproduced as under:- “However, as the respondent had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during this period when the letter remained in the field…. We consider that as far as the recovery of amount in question is concerned, the principle of locus poenitentiae would be applicable and the appellants are not entitled to recover the amount. The appellants have themselves taken a liberal view and the recovery of only 12 months is being made” Otherwise the case of the respondent is also covered by section 24-A of General Clauses Act, 1897, which clearly reflect that once a right is accrued, the same cannot be withdrawn unless and until it is established that the scheme was obtained by practicing fraud or misrepresentation. Section 24-A of the General Clauses Act, 1897, is reproduced as under:- “24-A. Exercise of power under enactments.— (1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment. (2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so for as necessary or appropriate give reasons for making the order or, as the case made be for issuing the direction and shall provide a copy of the order or as the case may be, the direction to the person affected prejudicially.” CP No.405/2020 National Savings Central Directorate Islamabad Vs, Muhammad Farooq Raja 7 The contention of the learned counsel for the respondent that the doctrine of promissory estoppel is squarely applicable has force. It is well settled that where the Government control functionaries make promise which ensues a right to anyone who believes them and acts under them, then those functionaries are precluded from acting detrimental to the rights of such person/citizen. Otherwise the case of the respondent is also hit by doctrine of “legitimate expectation”. Justice (Retired) Fazl Karim, in his book, “Judicial Review of Public Actions” at page 1365 has equated the aforesaid doctrine to the “fairness” and equity which is legitimate attribute of a public functionary. The relevant passage reads like this:- “The justification for treating “legitimate expectation” and ‘promissory estoppel’ together as grounds for judicial review is, one, that they both fall under the general head ‘fairness’; and too, that ‘legitimate expectation’ is akin to an estoppel.” This very doctrine has a history of appreciation by this Court in a various judgments including (1986 SCMR 1917) “Al-Samrez Enterprise vs. The Federation of Pakistan” wherein it is held as under:- “It is a settled rule that an executive authority cannot in exercise of the rule-making power or the power to amend, vary or rescind an earlier order, take away the rights vested in the citizen by law.” 7. During the course of proceedings, it has been brought in our notice that the Ministry of Interior, Government of Pakistan (Directorate General of Immigration & Passports) has issued the list of 20 countries, the citizen of those countries mentioned in the said document are eligible to keep dual nationality without any deprivation of any legal rights under the protection of law of the land. Admittedly the respondent is citizen of Denmark which is marked at serial (19) in the list duly issued by the Ministry of Interior, Government of Pakistan and as such the respondent enjoys the facilitation of law. Otherwise it has been held by learned Single Bench of the High Court that the petitioner has already crossed the age CP No.405/2020 National Savings Central Directorate Islamabad Vs, Muhammad Farooq Raja 8 required of 60 years which otherwise make him eligible to seek advantage of the said scheme. 8. In view of the facts and circumstances narrated above, we are of the considered view that the case of the petitioner is without any legal substance. The findings of the learned Single Bench of Lahore High Court (Rawalpindi Bench) are quite in accordance with law. We do not find any merit in this petition which is accordingly dismissed. Leave to appeal is declined. JUDGE JUDGE JUDGE Islamabad, B-III 02.11.2020/*Athar Approved for reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE GULZAR AHMED, CJ. MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Civil Petition Nos.4185 of 2019, 4209 of 2019 & 4504 of 2019 (Against the judgment dated 28.10.2019 of the Punjab Service Tribunal passed in Appeal No.2872/2014) Dr. Sohail Hassan Khan (in C.P. No.4185-2019) Muhammad Javed Nayyer (in C.P. No.4209-2019) Dr. Shamas-ul-Hassan (in C.P. No.4504-2019) …..Petitioner(s) VERSUS Director General (Research), Livestock & Dairy Development Department, Punjab, Lahore & others (in all cases) …Respondent(s) For the petitioner(s) Mrs. Shireen Imran, ASC (in C.P. No.4185 & 4209/2019) Mr. Abdul Rahim Bhatti, ASC (in C.P. No.4504/2019) For Respondents(s): N.R. Date of hearing: 20.08.2020. … ORDER Qazi Muhammad Amin Ahmed, J-. In a long drawn struggle, marred by consecutive failures, the petitioners are resigned in the last ditch to save their jobs; they were at the helm in various capacities in the Poultry Research Institute at Rawalpindi. The episode started in the wake of massive earthquake that devastated/ jolted Azad Jammu & Kashmir with adjoining parts of Khyber Pakhtunkhaw in the year 2005. With an unprecedented intensity, the seismic vibrations followed by aftershocks resulted into colossal loss of life and property. Rescue and rehabilitation efforts with the assistance of foreign donors started soon after the disaster. The Food & Agricultural Organization, a specialized agency of the United Nations Organization, joined the efforts by detaching substantial Civil Petition Nos.4185 of 2019, 4209 of 2019 & 4504 of 2019 2 assistance through the good offices of the Asian Development Bank to provide poultry package for, “immediate support to poor and vulnerable households in inaccessible areas devastated by the 2005 earthquake”. The Poultry Research Institute Rawalpindi was tasked to reach out the victims with aid package. Dr. Shamas-ul-Hassan, Dr. Sohail Hassan Khan and Muhammad Javed Nayyar were posted as Director, Assistant Director and Office Superintendent, respectively; they were required to procure 100,000 birds, standard/specification whereof, with mode of transportation, were settled by the donor through letter dated 13th of June, 2007. It appears that 51228 birds were purchased from designated government outlets while for the provision of the remainder, the petitioners ventured on their own; it is in this backdrop that a private supplier, namely, Abdul Saboor lodged complaint with the Director General Livestock Lahore alleging surreptitious unilateral modifications in the supply contract regarding 25000 birds; he blamed them for reduction in the settled price as well as withholding of income tax besides charging commission on each bird. The complaint was probed into and the department vide order dated 5.8.2011 decided to proceed against them on the following charges: i. They engaged in private business of supplying poultry birds in earth quake hit areas in their official capacities, abusing their position. ii. They opened and operated fake departmental account/s for these fraudulent transactions. iii. They made an estimated profit of Rs.4.306 million by procuring poultry birds of questionable quality from private poultry farms at rock-bottom rates and supplying the same to various agencies including FAO at hefty rates, pocketing the differential. iv. They received a sum of Rs.0.295 Million as commission from a farmer Mr. Abdul Saboor R/o Mohallah Shah Jamal, Gakhar Mandi. Mr. Farhan Aziz Khawaja, a grade 20 officer of PAS, was appointed as inquiry officer. After a regular inquiry followed by personal hearing, the Chief Minister vide order dated vide order dated 14.06.2012 compulsorily retired Dr. Shamas-ul-Hassan with a direction to recover Rs.4.601 million along with Rs.4.306 million and Rs.0.295 million, received by him through the impugned transactions. Dr. Sohail Hassan Khan petitioner was awarded major penalty of removal from service; Muhammad Javed Nayyar Civil Petition Nos.4185 of 2019, 4209 of 2019 & 4504 of 2019 3 petitioner was also dismissed from the service; they petitioned before the Chief Minister for a review; an elaborate exercise already undertaken and a considered decision notwithstanding, the Chief Minister, nonetheless, passed the following order: “After due examination of the facts of the case, contents of the review petition and averments made by the review petitioners before the Hearing Officer, it is observed that the accused officers have very vehemently contended that neither they were given a fair opportunity of hearing nor fair trial was given to themselves. They also contended that the responsibility was not apportioned according to their job description/official role. Therefore, the order of penalty dated 14.06.2012 is set aside and a de novo proceeding is ordered against the accused officers namely Dr. Shamas-ul- Hassan, Ex-Director, PRI, Rawalpindi, Dr. Sohail Hassan Khan, Ex-Assistant Director, PRI and Mr. Javed Nayyar, Office Superintendent, PRI, Rawalpindi. The A.D. may put up a panel of suitable officers for appointment of an Inquiry Officer to conduct de novo proceedings in the case.” Dr. Muhammad Shabbir Shahid, Director (HQR) Directorate General (Ext) L&DD Punjab conducted de novo inquiry. With nothing additional, the second inquiry officer came up with amazing conclusions, best described as self destructive; he benignly recommended forfeiture increments, albeit after holding them guilty of misconduct under the Punjab Employees Efficiency Discipline & Accountability Act, 2006, a best possible package under the circumstances. The competent authority/Secretary L&DD Department Lahore remitted the matter for reconsideration of proposed penalty whereupon the inquiry officer came up with a slightly higher wage; this time, he recommended compulsory retirement for Dr. Shams-ul- Hassan petitioner while suggested forfeiture of five increments for Dr. Sohail Hassan Khan with additional reduction to lower post for Muhammad Javed Nayyar, petitioner. The Secretary, however, restored penalties suggested by the first inquiry officer except for conversion of dismissal of Muhammad Javed Nayyar, petitioner, into removal from service. Appeal before the Chief Secretary failed on 13.08.2014 followed by failure before the Punjab Service Tribunal on 28.07.2015. The petitioners approached this Court and the matter was once again remanded on 4.3.2019 to the Service Tribunal for decision afresh. The Service Tribunal maintained its findings vide judgment dated 28.10.2019, vires whereof are being jointly assailed by the learned counsel; it is contended, in unison, that after petitioners’ exoneration from the proceedings of Anti Corruption Department, their position stood vindicated and there was no occasion for Civil Petition Nos.4185 of 2019, 4209 of 2019 & 4504 of 2019 4 the authorities to departmentally proceed against them; that the penalties inflicted upon the petitioners are disproportionately harsh as in the absence of positive proof, forfeiture of increments as recommended by the second inquiry officer was a more conscionable treatment in circumstance; that in any case, enhancement of penalty required reasons in support thereof, according to the learned counsel, hopelessly lacking in the impugned order; that mere opening of accounts without any proof of wrongful gain would not warrant to seal a long career otherwise unblemished, concluded the learned counsel after relying on a number of cases structured in different factual backgrounds. 2. Heard. Record perused. 3. It is by now well settled that a civil servant cannot escape departmental proceedings or consequences thereof on account of his acquittal/exoneration on a criminal charge arising out of the same impugned transaction; these two are entirely different jurisdictions with different standards of proof as well as procedures; criminal prosecution requires strict proof through a narrowly jacketed procedure and, thus, State’s failure on criminal plane does not provide shield of double jeopardy to a delinquent officer. We would otherwise not comment upon the outcome of proceedings before the Anti Corruption Department as the matter is not before us nor the petitioners have picked up the courage to place details thereof before the authorities. Multiple transactions with grant package through privately held bank accounts inescapably established petitioners’ culpability as official channels were available in the form of departmental accounts to effect payments to the vendors. Similarly without approval or authority purchase from outlets through private arrangements cannot be viewed as an innocent omission, that too, by officers with considerable standing/experience. Petitioners’ emphatic stress on the principle of proportionately is entirely beside the mark. Public authority is a most sacred trust and a very high onus is cast upon a State functionary to uphold the highest degree of rectitude in financial matters; financial corruption or misappropriation of public money are wrongs of most repugnant depravity; once a public servant is found to have the capacity to betray the public trust, it would be most unwise as well as inexpedient to retain him on the job. Integrity of an individual cannot be quantified and, thus, in the circumstances of the present case, Civil Petition Nos.4185 of 2019, 4209 of 2019 & 4504 of 2019 5 the principle of proportionality has no application. Similarly argument that enhancement of penalty in the de novo inquiry required additional material and show cause does not hold much water. The entire material was collected by the first inquiry officer and was well within the notice of the petitioners; they were confronted with the available material during personal hearings and it was after compliance with all the procedural formalities that they were recommended penalties, they sought review whereof, apparently for no valid reasons. As pointed out above, observations recorded by the second officer are not only self destructive, these had no material basis as well; it appears a treacherous attempt to provide the petitioners a safe exit, rightly blocked by the Secretary, therefore, restoration of original penalties in an ongoing process cannot be viewed as enhancement as it entailed no additional consequences other than proposed in the first place. Petitions fail. Leave declined. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 20th August, 2020 Not approved for reporting Azmat/*

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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.4188 of 2019 (Against the judgment dated 01.10.2019 of the Lahore High Court, Rawalpindi Bench passed in Intra Court Appeal No.63 of 2019) Hubdar Hussain Malik .…Petitioner(s) Versus Deputy Commissioner Chakwal and another ….Respondent(s) For the Petitioner(s): Mr. Hassan Raza Pasha, ASC For the Respondent(s): N.R. Date of hearing: 05.08.2020. ORDER Qazi Muhammad Amin Ahmed, J.- The petitioner, a Shiite Muslim, sought issuance of a mandamus for security arrangements regarding a procession during the month of Moharram-ul-Haram that he claimed to be an annual ritual in the village since the time immemorial; relying upon various Articles of the Constitution of the Islamic Republic of Pakistan, he prayed the High Court to issue appropriate directions to the Deputy Commissioner Chakwal to set in place the measures suggested in the Constitution petition; the request was disposed of by a learned Judge- in-Chamber, in the following terms: “…..As Deputy Commissioner, Chakwal/respondent No.1 has already sent an intimation to the District Police Officer Chakwal/respondent No.2 for provision of security as per previous practice/SOPs and Assistant Commissioner as well as DSP, in attendance, ensure that they will make best efforts that no untoward situation occurs and provide the security as per law; learned counsel for the petitioner feels satisfied and under instructions states that they will conclude the Majlis within 45 minutes, hence, the petition is disposed of as such.” The petitioner sought review of the order through an application, dismissed in limine on 18.9.2019; his next move through an Intra Court Appeal met Civil Petition No.4188 of 2019 2 with no better fate on 01.10.2019, as the event had by then peacefully passed by. 2. Learned counsel for the petitioner contends that notwithstanding the flux of time a permanent security arrangement as proposed by the petitioner is required to ensure peace and tranquility during the month of Moharram-ul-Haram and, thus, it was incumbent upon the High Court to issue the directions prayed for. 3. Heard. 4. Subject to law, public order and morality, the Constitution confers upon every citizen the right to profess, practice and propagate his religion; in a normal/ideal situation, profession and practice of a particular faith by a believer or group thereof should not pose any issue, calling for intervention of State functionaries, however, the state of affairs unfortunately, over the time, has deteriorated alarmingly; routine events of the past have now become, more often than not, security nightmares with no recession or respite being in sight, therefore, with mounting pressures and threats, the functionaries, tasked with the responsibility to maintain peace and tranquility in the society in order to ensure safety of human lives, must be provided autonomy of discretion with enough space to carry out their job without let or hindrance; security measures are resource intensive arrangements with financial impacts upon public exchequer, therefore, it is essential as well as expedient that exercise of freedom is reasonably regulated on administrative considerations on the paramountcy of larger public interest. The functionaries are the best Judges to evaluate the nature and magnitude of threats so as to take all appropriate remedial measures/steps required to obviate impending disasters; these are not justiciable issues and, thus, the learned Judge-in-Chamber had rightly heeded the report submitted by the Deputy Commissioner Chakwal; peaceful conclusion of the event amply vindicates his position. Petition fails. Leave declined. Judge Judge Islamabad, the 5th August, 2020 Not approved for reporting Azmat/- Civil Petition No.4188 of 2019 3

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MANZOOR AHMAD MALIK MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 41 OF 2008 & CIVIL APPEAL NO. 2054 OF 2007 & 1208 OF 2015 (On appeal against the judgments dated 15.01.2008, 19.1.2007 & 17.06.2014 passed by the Lahore High Court, Lahore & Multan Benches in Writ Petition Nos. 9357/2007, 11952/2006 & 11963/2010) 1. Mst. Gulshan Bibi etc (In CP 41/2008) 2. Federation of Pakistan through Secretary Law & Justice etc (In CA 2054/2007) 3. Muhammad Siraj ud Din Khan (In CA 1208/2015) … Petitioners/Appellants VERSUS 1. Muhammad Sadiq etc (In CP 41/08 & CA 1208/15) 2. Zahoor Ahmed etc (In CA 2054/2007) …Respondents IN CIVIL PETITION NO. 41/2008 For the Petitioners: Mr. Muhammad Aslam Zar, ASC Sardar Abdul Razzaq Khan, ASC For the Respondent (1): N.R. IN CIVIL APPEAL NO. 2054/2007 For the Appellants: Mr. Sajid Ilyas Bhatti, DAG For Respondents (1-6, 9-10): Ex-parte IN CIVIL APPEAL NO. 1208/2015 For the Appellant: Mr. Muhammad Akram Sheikh, Sr. ASC Mr. Mehmood A. Sheikh, AOR CIVIL PETITION NO. 41 OF 2008 AND CIVIL APPEAL NOs. 2054 OF 2007 AND 1208 OF 2015 2 For the Respondents: N.R. For the Federation: Mr. Sajid Ilyas Bhatti, DAG For Govt of Punjab: Mr. Mudassar Khalid Abbasi, AAG For Govt of Sindh: Mr. Sarwar Khan, Add. A.G Mr. Abdul Jabbar Qureshi, AAG Date of Hearing: 15.06.2016 JUDGMENT FAISAL ARAB, J. - The legal question before this larger bench to settle is whether anyone who commits the offence described in Section 3 of the Illegal Dispossession Act, 2005 can be prosecuted as held by this Court in the cases of Muhammad Akram Vs. Muhammad Yousaf (2009 SCMR 1066), Mumtaz Hussain Vs. Dr. Nasir Khan (2010 SCMR 1254) and Shahabuddin Vs. The State (PLD 2010 SC 725), hereinafter referred to as the first set of cases or the scope and applicability of the Illegal Dispossession Act, 2005 is restricted and only those can be prosecuted who hold the credentials and antecedents of a land grabber or Qabza Mafia i.e. those who are known, acknowledged and established property grabbers as held by this Court in the case of Bashir Ahmad Vs. Additional Sessions Judge (PLD 2010 SC 661) and followed in the case of Habibullah Vs. Abdul Manan (2012 SCMR 1533), hereinafter referred to as the second set of cases. 2. We shall examine the ratio of the second set of cases first, which as a precondition require that the complaint under Illegal Dispossession Act, 2005 can only be maintained if the accused possesses all the credentials and antecedents of being a CIVIL PETITION NO. 41 OF 2008 AND CIVIL APPEAL NOs. 2054 OF 2007 AND 1208 OF 2015 3 land grabber or member of Qabza Group. The terms ‘land grabbers’ or ‘Qabza Group’ or ‘Qabza Mafia’ in ordinary parlance refer to a distinct class of offenders who usurp property of others in an organized manner. They mostly target unoccupied or deserted urban properties belonging to the Federal Government, the Provincial Governments, Municipal authorities, autonomous or semi-autonomous bodies, Trusts or Waqfs and at times even properties belonging to private persons. By resorting to various forms of fraud and forgery the professional land grabbers or Qabza Mafia first get the targeted property transferred in the official records in the name of a person of their confidence and then create third party interest thereon. In doing so the face of the professional land grabbers or Qabza Group remains hidden. They indulge in land grabbing through their proxy so that the real beneficiary of land grabbing could not be identified. With every new act of illegal dispossession the face of the proxy keeps changing. In every case where ratio of the second set of cases is to be applied it would be incumbent upon the complainant to establish that the accused belongs to a land Mafia or Qabza Group. The accused in reply almost invariably is not going to admit that he holds such a record. The denial of such a plea would serve as best defence against his prosecution. In all such cases extrinsic evidence would be required to establish that the accused possesses all the credentials of a professional land grabber or Qabza Mafia. Such kind of evidence would certainly not be relatable to the incident reported in the complaint but to an offence of illegal dispossession committed by the accused sometime in the past in relation to some property. This CIVIL PETITION NO. 41 OF 2008 AND CIVIL APPEAL NOs. 2054 OF 2007 AND 1208 OF 2015 4 evidence would depend on the testimony of persons who may not be known to the complainant at all. The only alternative to this would be that in some judicial pronouncement, the accused has already been declared to be a known, acknowledged and established land grabber or member of Qabza Group. Anything short of classifying the accused as a known, acknowledged and established land grabber would not be sufficient to prosecute him under the provisions of Illegal Dispossession Act, 2005. The complainant would thus be required to cross this hurdle first before the court assumes jurisdiction over the accused with regard to the incident reported in the compliant. Failure to do so would result in the dismissal of the case without even examining the truthfulness of the complaint that was filed for adjudication. Thus in every case where the ratio of the second set of cases is to be applied, the existence of judicially acceptable material on the record would be necessary to satisfy the Court that the accused possesses all the credentials and antecedents of being a member of ‘land grabbers’ or ‘Qabza Group’ or ‘Qabza Mafia’ otherwise the complaint filed under the provisions of Illegal Dispossession Act, 2005 would not be maintainable. In putting such a restricted interpretation on the scope and applicability of the Illegal Dispossession Act, 2005, the second set of cases has cast an arduous burden upon the complainant to establish existence of a fact of which he may not even have any knowledge or the means or the capability to prove it in a court of law. CIVIL PETITION NO. 41 OF 2008 AND CIVIL APPEAL NOs. 2054 OF 2007 AND 1208 OF 2015 5 3. Now the question that needs to be examined is whether the Legislature did intend that the complainant shall first establish that the accused possesses the credentials or antecedents of land grabbers or Qabza Group before his complaint could be entertained by the court. In order to examine this question we shall first examine the contents of the Working Paper for the reason that the Working Paper has been discussed in one of the impugned judgments, reasoning of which was adopted by this Court in the second set of cases. This Working Paper was prepared by the law ministry at the time of laying the Illegal Dispossession Bill before the parliament. It was captioned “The object of the proposed Bill is to provide deterrent punishment to the land grabbers and Qabza Group and to provide speedy justice and effective and adequate relief to the victims dispossessed of immovable property by unlawful means….” The terms ‘land grabbers’ and ‘Qabza Group’ appearing in the Working Paper were heavily relied upon in one of the impugned judgments in reaching the conclusion that the accused must possess the credentials or antecedents of land grabbers or Qabza Group before his complaint could be entertained by the court. However, the terms ‘land grabbers’ and ‘Qabza Group’ appearing in the Working Paper did not find their way in any provision of the Illegal Dispossession Act, 2005. Not even in its preamble. Only the term ‘property grabbers’ was used in the preamble and even this term was not used anywhere else in the entire enactment. By mere use of the term ‘property grabbers’ in the preamble, the scope and applicability of the Illegal Dispossession Act, 2005 was restricted by the second set of cases to a certain class of offenders and the relief CIVIL PETITION NO. 41 OF 2008 AND CIVIL APPEAL NOs. 2054 OF 2007 AND 1208 OF 2015 6 sought in the complaint was held not to be available to the victims of illegal dispossession against those who do not fall under such class of offenders. In our society the acts of illegal dispossession are largely committed at the behest of the persons who are rich, powerful feudal lords, politicians, builders, government functionaries or the persons who head large communities and on account of their influence and power are placed in domineering positions either over their fellow community members or over less powerful communities living in the area of their influence. In terms of the ratio of the second set of cases not every influential, rich or powerful person who illegally grabs someone’s property is amenable to the provisions of the Illegal Dispossession Act, 2005 unless, as a condition precedent, he possesses the credential and antecedents of ‘land grabber’ or ‘Qabza Group’ or ‘Qabza Mafia’. We may mention here that before the Illegal Dispossession Act, 2005 was enacted, any person who illegally dispossessed a lawful owner or occupier used to face either civil litigation which takes years together before justice is delivered. Even where criminal proceedings were lodged they were initiated under the provisions of Pakistan Penal Code in the court of a Magistrate, which too did not prove to be an effective remedy. Thus until the Illegal Dispossession Act, 2005 came into effect, the acts of dispossession continued to take place without any efficacious, effective and speedy remedy made available to the victims. Such acts at times translated into serious criminal offences including murders. To suppress such mischief was the main object that was to a greater extent achieved through Illegal Dispossession Act, 2005. CIVIL PETITION NO. 41 OF 2008 AND CIVIL APPEAL NOs. 2054 OF 2007 AND 1208 OF 2015 7 4. The legislature while enacting a special law for awarding punishment for a crime, in its wisdom, may or may not describe any particular category of persons who could be prosecuted. Where a special law after making a particular act an offence also describes the category of persons who could only be prosecuted then unless such person falls within the described category, he cannot be prosecuted. Where the special law only describes the offence or a set of offences and seeks to punish any person and every person who is found to have committed the described offence then the terms like ‘anyone’, ‘any person’ ‘whoever’ and ‘whosoever’ are used for the offenders in order to include all offenders without any distinction. In such a case, the offender may belong to any class of offenders, he as an accused can be prosecuted under such law. It can be seen that the Illegal Dispossession Act, 2005 has defined the offence but has not categorized any class of offenders who only could be prosecuted for committing the defined offence. This is evident from the provisions of subsections (1) and (2) of Section 3 of the Illegal Dispossession Act, 2005 which read as follows: Section 3 (1): No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property. Section 3(2): Whoever contravenes the provisions of the sub- section (1) shall, without prejudice to, any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also CIVIL PETITION NO. 41 OF 2008 AND CIVIL APPEAL NOs. 2054 OF 2007 AND 1208 OF 2015 8 be compensated in accordance with the provision of section 544-A of the Code. (Underlining is ours to lay emphasis) 5. A bare reading of sub-sections (1) of Section 3 the Illegal Dispossession Act, 2005 shows that terms like dispossess, grab, control or occupy have been used which clearly mean that illegal dispossession in all forms have been made an offence and by the use of the terms ‘no one’ and ‘whoever’ in sub-sections (1) and (2) of Section 3, anyone and everyone who commits such an offence was made liable for punishment. The very use of the terms like ‘no one’ and ‘whoever’ are clearly intended to convey the widest possible meaning for the offenders. Thus without any distinction any person who illegally dispossesses, grabs, controls or occupies property of a lawful owner or occupier shall be liable for prosecution under the provisions of the Illegal Dispossession Act, 2005. The second set of cases has however restricted the scope and application of the Illegal Dispossession Act, 2005 to a particular class of offenders only i.e. those who possess the credentials or antecedents of being ‘land grabbers’ or Qabza Group by placing reliance on the term ‘property grabbers’ that appears in the preamble of the Illegal Dispossession Act, 2005. From the mere use of the term ‘property grabbers’ in the preamble one cannot reach the conclusion that the legislature intended that a complainant must first establish that the accused possesses the credentials or antecedents of being a professional land grabber or member of a Qabza Group in order to maintain his complaint under the said Act. The term ‘property grabber’ can be construed to refer to anyone who has committed the act of grabbing CIVIL PETITION NO. 41 OF 2008 AND CIVIL APPEAL NOs. 2054 OF 2007 AND 1208 OF 2015 9 someone’s property illegally. Limiting the scope and application of the provisions of the main enactment to a particular class of offenders and that too on the basis of a term used in the preamble would not only deflect the Court to go into issues which are not subject matter of the complaint that is before it but at the same time such an interpretation would violate the cardinal principle of the statutory construction that where the language of the substantive provision of an enactment is clear and not open to any doubt then the preamble cannot be used to curtail or enlarge its scope. Thus where the enactment is clear and unambiguous, the preamble cannot be used to undermine the clear meaning of the provisions of the Act or give it a different meaning. Only where the object or meaning of an enactment is not clear, the preamble may be resorted to in order to explain it. So the preamble is to be resorted only to explain and give meaning to any provision of the enactment where its language is open to doubt or is ambiguous or susceptible to more than one meaning. In the presence of the general terms like ‘anyone’ or ‘whoever’ that have been used to describe the offender, which are clear and wide in their application, the scope of the Illegal Dispossession Act, 2005 cannot be confined to any particular class of offenders. 6. It would also be not out of place to mention here that reference to Legislative history is permissible only as an aid to construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity i.e. from the text of a statute, the court is unable to decipher the real intent of the CIVIL PETITION NO. 41 OF 2008 AND CIVIL APPEAL NOs. 2054 OF 2007 AND 1208 OF 2015 10 Legislature. Where the text is clear and there exists no ambiguity, resort to the legislative history may actually be counter-productive. This is because legislative history contains sporadic accounts and arguments made by the parliamentarians and the final outcome of debates and arguments made in the parliament could be much different. Therefore, the real intention of the parliament is to be first and foremost ascertained from the provisions of the enactment itself and frequent resort to the legislative history is not warranted. In this regard the case of Pepper Vs. Hart [1992] 3 WLR 1032, a judgment from English jurisdiction, can be referred with considerable advantage. 7. From what has been discussed above it is evident that no provision of the Illegal Dispossession Act, 2005 imposes any precondition on the basis of which a particular class of offenders could only be prosecuted. The Act aims at granting efficacious relief to lawful owners and occupiers in case they are dispossessed by anyone without lawful authority. Section 3(1) of the said Act by using the terms ‘anyone’ and ‘whoever’ for the offenders clearly warns all persons from committing the offence described therein and when found guilty by the court are to be punished without attaching any condition whatsoever as to the maintainability of the complaint. So all that the Court has to see is whether the accused nominated in the complaint has entered into or upon the property in dispute in order to dispossess, grab, control, or occupy it without any lawful authority. Nothing else is required to be established by the complainant as no precondition has been attached under any CIVIL PETITION NO. 41 OF 2008 AND CIVIL APPEAL NOs. 2054 OF 2007 AND 1208 OF 2015 11 provision of the said Act which conveys the command of the legislature that only such accused would be prosecuted who holds the credentials and antecedents of ‘land grabbers’ or ‘Qabza Group’. It does not appeal to reason that for commission of an offence reported it the complaint filed under the Illegal Dispossession Act, 2005 the Legislature would intent to punish only those who hold history of committing a particular kind of offence but would let go an accused who though has committed the offence reported in the complaint but does not hold the record of committing a particular kind of offence. In our view trial of a case is to be relatable to the property which is subject matter of the complainant, pure and simple. Any past history of the accused with regard to his act of dispossession having no nexus with the complaint cannot be taken into consideration in order to decide whether the accused stands qualified to be awarded a sentence under the Act or not. Once the offence reported in the complaint stands proved against the accused then he cannot escape punishment under the Illegal Dispossession Act, 2005. 8. In view of the above discussion we conclude that in any proceedings initiated under Illegal Dispossession Act, 2005, the issues which fall for decision would be whether the offence against a lawful owner or occupier, as described in the complaint, has taken place and whether it is the accused who has committed it without any lawful authority. Anyone found committing the offence described in Section 3 would be amenable to prosecution under the provisions of Illegal Dispossession Act, 2005 and no past record of the accused needs to be gone into by the court. CIVIL PETITION NO. 41 OF 2008 AND CIVIL APPEAL NOs. 2054 OF 2007 AND 1208 OF 2015 12 9. In view of the above conclusion, we hold that the first set of cases Muhammad Akram Vs. Muhammad Yousaf (2009 SCMR 1066), Mumtaz Hussain Vs. Dr. Nasir Khan (2010 SCMR 1254) and Shahabuddin Vs. The State (PLD 2010 SC 725) is good law whereas the finding arrived at in the second set of cases i.e. in the case of Bashir Ahmad Vs. Additional Sessions Judge (PLD 2010 SC 661) and followed in the case of Habibullah Vs. Abdul Manan (2012 SCMR 1533) which restrict the scope and applicability of the Illegal Dispossession Act, 2005 is not a good law. Resultantly, Civil Petition No. 41 of 2008 is converted into appeal and allowed. Likewise, Civil Appeal Nos. 2054/2007 and 1208/2015 are also allowed. The impugned judgments in all three connected cases are set aside and the cases are remanded back to the High Court for their decision afresh on merits in accordance with law. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Islamabad, the Announced on _____________ by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram

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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Gulzar Ahmed Mr. Justice Umar Ata Bandial Civil Petitions No.423-K & 472-K of 2015 [On appeal against common Judgment dated 05.08.2015 passed by the High Court of Sindh, Karachi, in Constitution Petitions No.D-4753 & D-4166 of 2013 etc] Association for the Welfare of Owner & Staff of Qingqi (Chingchi) Rickshaw, Sindh (in C.P.No.423-K) All Karachi Qingqi Rickshaw Welfare Association through its Finance Secretary, Karachi (in C.P.No.472-K) Petitioner(s) VERSUS Province of Sindh through Secretary Transport, Government of Sindh, Karachi & others. (in C.P.No.423-K) Ghulam Qadir Thebo and others. (in C.P.No.472-K) Respondent(s) For Petitioner(s) : Mr. Nasir Rizwan Khan, ASC Mrs. Abida Parveen Channer, ASC Dr. Raana Khan, AOR Mr. Abdul Saeed Khan Gohri, AOR (Absent). For Govt. of Sindh : Mr. Shehryar Qazi, Addl.A.G. Manshad Ali, Secretary RTA. Ijaz Ahmed Hashmi, S.P. Traffic, Karachi. Dara Ghani, Excise & Taxation Department. For Govt. of the Punjab : Mr. Razzaq A Mirza, Addl.A.G. Muhammad Iqbal, Secretary Provincial Transport Authority. For Govt. of Balochistan : Mr. Muhammad Ayaz Khan Swati, Addl.A.G. For Govt. of KPK : Mr. Abdul Lateef Yousafzai, A.G. Mazhar Sajjad, Addl. Secretary Transport. For Applicant(s) (in CMA.759-K/2015) : Mr. Muhammad Munsif Jan, ASC Mr. Mazhar Ali B. Chohan, AOR (Absent). (in CMAs.1799 & 1800/2017) : Mr. Waqar A. Sheikh, ASC Mr. Imtiaz A. Shoukat, AOR (Absent). (in CMA.1805/2017) : Mr. Shahzada Mazhar, ASC Ch. Akhtar Ali, AOR. (in CMA.1007-K/2015) : Nemo. Date of Hearing : 29.03.2017 Civil Petitions No.423-K & 472-K Of 2015 P a g e | - 2 - O R D E R GULZAR AHMED, J.— By these Civil Petitions for Leave to Appeal, the petitioners have challenged common judgment dated 05.08.2015 passed by the learned High Court of Sindh at Karachi. The operative part of which is as follows:- “Accordingly, the aforesaid petitions being C.P.Nos.D- 4166/2013, 4184/2013 and 4753/2013, filed on behalf of Qingqi Rickshaw Owners Welfare Association, are hereby dismissed along with the listed applications with cost of Rs.10,000/- (Rupees ten thousand) each to be deposited in the account of High Court Clinic. Consequent to dismissal of above petitions, the petition being C.P.No.D-3974/2012 filed on behalf of United Human Rights Commission Pakistan is allowed, whereas official respondents i.e. respondents No.1 to 9 are directed to take immediate legal action against all such illegal Qingqi Motorcycle Rickshaws (three wheelers) which are plying on the roads with impunity and without any fitness certificate, route permit and registration certificate. Such action may include issuance of challans, imposing fine and also impounding of such illegal vehicles in accordance with law, rules and regulations. Thereafter, compliance report shall be submitted to this Co0urt through MIT within two weeks from the date of this judgment. It is further directed that unless the petitioner(s) obtain the requisite fitness certificate, route permit and registration with the concerned authorities i.e. Transport Department and the Motor Vehicle Registration Wing, after complying with all the legal formalities, the respondents shall continue to take action against such delinquent vehicle owners in accordance with law and to submit further compliance report every month thereafter. However, it is clarified that such action shall be taken strictly in accordance with law, rules and regulations against such Qingqi Motorcycle Rickshaw (three wheelers) which do not comply with the Motor Registration Vehicle Ordinance, 1965, Motor Vehicle Rules, 1969 or any other law for the time being in force by any Federal or Provincial enactment relating to public vehicles”. Civil Petitions No.423-K & 472-K Of 2015 P a g e | - 3 - 2. The matter has been coming up before this Court and from time to time the Court has been passing orders on the question of operation of Qingqi Rickshaws in the Province of Sindh and in particular at Karachi. On 03.09.2015 this Court has passed the following order when the question of operation of Qingqi Rickshaws was extended to all four Provinces of the country : “The menace of plying of Qingqi Rickshaws, which are not specified, standardized and fit according to Motor Vehicle laws, rules and notifications, is not germane only to the Province of Sindh but to all Provinces of Pakistan. The High Court of Sindh at Karachi by the impugned judgment dated 05.08.2015 has given directions to the Government for taking action against the illegal plying/operation of Qingqi Rickshaws. The relevant portion of the impugned judgment is as follows:- “8. Accordingly, the aforesaid petitions being C.P.Nos.D-4166/2013, 4184/2013 and 4753/2013 filed on behalf of Qingqi Rickshaw Owners Welfare Association, are hereby dismissed along with listed applications with cost of Rs.10,000/- (Rupees ten thousand) each, to be deposited in the account of High Court Clinic. Consequent to dismissal of above petitions, the petition being C.P.No.D-3974/2012 filed on behalf of United Human Rights Commission Pakistan is allowed. Whereas the official respondents i.e. respondent No.1 to 9 are directed to take immediate legal action against all such illegal Qingqi Motorcycle Rickshaws (three wheelers), which are plying on the roads with impunity and without any fitness certificate, route permit and registration certificate. Such action may include issuance of challans, imposing fine and also impounding of such illegal vehicles in accordance with law, rules and regulations. Thereafter, compliance report shall be submitted to this Court through MIT within two weeks from the date of this judgment. It is further directed that unless the petitioner(s) obtain the requisite fitness certificate, route permit and registration with the concerned authorities i.e. Transport Department and the Motor Vehicle Registration Wing, after complying with all Civil Petitions No.423-K & 472-K Of 2015 P a g e | - 4 - the legal formalities, the respondents shall continue to take action against such delinquent vehicle owners in accordance with law and to submit further compliance report every month thereafter. However, it is clarified that such action shall be taken strictly in accordance with law, rules and regulations against such Qingqi Motorcycle Rickshaw (three wheelers) which do not comply with the Motor Vehicle Ordinance, 1965, Motor Vehicle Rules, 1969 or any other law for the time being in force by any Federal or Provincial enactment relating to public vehicles. 9. Let a copy of this Judgment be circulated to the Chief Secretary, Government of Sindh, Home Secretary, Government of Sindh, Secretary, Transport and Mass Transit Department, Government of Sindh, Commissioner/Administrator, Karachi, concerned DIG/SP (Traffic), who shall ensure that immediate legal action shall be taken against such illegal Qingqi Motorcycle Rickshaws which are plying on public roads and highways of Karachi and other big cities of province of Sindh, without any route permit, fitness certificate and registration, whereas, all possible assistance shall be provided by the law enforcing agencies, including Rangers, if so required by local or provincial administration in this regard.” Against the above judgment, these petitions have been filed in this Court, in which on 03.09.2015 the following order was passed :- “Reports have been filed by SSP Traffic District Malir, Karachi so also by the Secretary, Provincial Transport Authority, Sindh, Karachi. It appears that a meeting between Representative of Qingqi Operator Association and Provincial Transport Authority has taken place for resolving the issue of plying of Qingqi Rickshaws. There seems to be some issues with regard to the structure of Qingqi Rickshaws and also its registration inasmuch as the Provincial Transport Authority’s point of view is that Qingqi Rickshaws should meet the requirement of rules, specification and should not be for Civil Petitions No.423-K & 472-K Of 2015 P a g e | - 5 - more passengers than 4+1. They say that Qingqi Rickshaws carrying 9 or 12 passengers are not against the rules but they are dangerous vehicles and are cause of constant serious accident on the roads. National Sales Manager of M/s Saigols Qingqi Motor Ltd. is in attendance, who claims that his company is only authorized manufacturer of Qingqi Rickshaws in Pakistan and that Qingqi Rickshaw, being manufactured by his company, is according to rules, specification and also meets all necessary standard as provided by various Government Departments. In the circumstances we direct the Secretary, Transport, Government of Sindh to arrange a meeting with all stakeholders together including Authorized Representative of Qingqi Rickshaw Owners Association, Qingqi Rickshaw Manufacturing Company, AIG Traffic, Representative of Excise and Taxation Department, Representative from Pakistan Standard Quality Authority, Pakistan Engineering Council, Pakistan Engineering Board and Head of Department of Automotive Engineering of NED University, Karachi. All these persons will undertake the exercise of resolving the controversy on the structure and capacity of Qingqi Rickshaws and also on their fitness and registration for plying on the roads. The Secretary will ensure that issue is resolved as early as possible but positively within a period of two weeks and a report in this regard under his hand will be submitted to this Court for our examination in Chamber. Adjourned. To be fixed in the next session.” Pursuant to the above order, the Secretary to Government of Sindh, Transport Department, has filed a comprehensive report by way of CMA No.698-K of 2015. In the face of above report of the Secretary, it is essential that each and every Qingqi Rickshaw operating not only in the Province of Sindh but all over Pakistan should be inspected and verified by the respective Transport Departments of all the Provinces in order to bring them in conformity with the standard and specification, as laid down by the law, rules and notifications and only after they are declared and certified in all respect to be fit according to the law, rules and notifications, they be registered and permitted to Civil Petitions No.423-K & 472-K Of 2015 P a g e | - 6 - ply and operate that too on the specified/notified routes. All the Provincial Secretaries of Transport Departments shall ensure compliance of this order within a period of three months and a comprehensive compliance report, in this respect, shall be made available for our perusal in Chambers. The owners of Qingqi Rickshaws and their operators should be informed of the exercise of inspection and such be communicated to them through all modes of publicity including the electronic and print media. All those who are concerned with this exercise will provide full cooperation and assistance and the Government shall ensure that all Qingqi Rickshaws which are plying and operating on the roads have been declared and certified as specified, standardized and fit with registration and route permit and that the drivers of Qingqi Rickshaws are duly licensed. A copy of this order be sent to the Advocate Generals of all Provinces as well as to all the Provincial Secretaries of Transport Departments, for making strict compliance.” 3. Subsequent to this order reports have been filed by the Government of the Punjab, Government of KPK and Government of Balochistan. Reports have already been filed and placed on record by the Government of Sindh. On 12.04.2016 the learned DAG has pointed out that in the Islamabad Capital Territory Qingqi Rickshaws are not operating, therefore, he may be exempted from submission of the report. Such statement of the learned DAG was taken on record. Today, this matter has extensively been argued before us. The learned Additional Advocate General, Punjab, has contended that in Province of the Punjab, Government has taken action of stopping operation and plying of illegal Qingqi Rickshaws on the roads and that only such Qingqi Rickshaws are allowed to ply on roads of the Province which are approved ones and manufactured by the registered and authorized manufacturers according to approved standard, specifications and declared fit in accordance with law to ply on the roads and the Qingqi Rickshaws which are not so are being impounded. He has further contended that Government of the Punjab has given its policy and has laid-down parameters for safety and security of the driver and passengers and that Qingqi Rickshaws are duly registered with the Excise & Taxation Department with proper fitness and roadworthy certificates and that their plying is restricted to Civil Petitions No.423-K & 472-K Of 2015 P a g e | - 7 - certain specified areas that too only with approved list of charges/fare from the passengers and additionally their drivers are armed with driving licence. The learned Advocate General KPK so also the Additional Advocate General, Balochistan have made similar submissions as that of the learned Additional Advocate General, Punjab and it seems that all these three Provinces in the matter of plying of Qingqi Rickshaws are on the same page. 4. As regards operation of Qingqi Rickshaws in the Province of Sindh including Karachi, it has been argued before us by the learned ASC for the petitioners and other Qingqi Rickshaw Operators that pursuant to the impugned judgment of the High Court and the orders passed by this Court, the petitioner and Qingqi Rickshaw Operators have conformed their Qingqi Rickshaws in accordance with the specifications and standards with all safety features, as laid down by the Government of Sindh, but the Government of Sindh is not allowing them to operate Qingqi Rickshaws although they have certification in this regard. The learned Additional Advocate General, Sindh, however, disputed that the petitioner and other Qingqi Rickshaw owners have conformed their Qingqi Rickshaws according to the Government specifications, standards and with safety measures and stated that almost all of the Qingqi Rickshaws which are plying on the roads of Province of Sindh have been stopped were not made by registered and authorized Qingqi Rickshaw manufacturers but rather were those which have been made by roadside vendors on different types of motorcycles and some of such motorcycles are even those which were stolen. He contended that conversion of motorcycles into Qingqi Rickshaws in the way the petitioner and other Qingqi Rickshaw owners have done is altogether illegal and is a great threat to the lives of not only the drivers and passengers of Qingqi Rickshaws but also to the pedestrians and others users of the roads. He has contended that the Province of Sindh also desires and has no objection to plying of Qingqi Rickshaws in the specified areas with approved charges/ fare but such Qingqi Rickshaws have to be those which are manufactured by registered and authorized manufacturers and they are also registered with the Excise & Taxation Department and have fitness and road worthy certificates. Thus, the position that emerges in the Province of Sindh including Karachi is that the Government of Sindh is wiling to allow operation of Qingqi Rickshaws but on satisfaction of the Civil Petitions No.423-K & 472-K Of 2015 P a g e | - 8 - conditions, as are argued by the learned Additional Advocate General. The petitioner and the other Qingqi Rickshaw owners present in Court, agree to make compliance of such conditions prescribed by the Government of Sindh. 5. In this behalf the legal provision dealing with the operation of motor vehicles are contained in the West Pakistan Motor Vehicle Ordinance, 1965. In 1975 this law was adopted by each of the Province of Balochistan, NWFP (now Khyber Pakhtunkhwa), Punjab and Sindh. This law comprehensively deals with the matters of registration, granting of fitness, granting of route permit etc to motor vehicles. In this regard Sections 23, 29 and 44 of the Ordinance are as follows:- “23. Motor vehicle not be driven without registration.. (1) A person shall not drive a motor vehicle and the owner shall not cause a vehicle to be driven unless the vehicle is registered under this Chapter and the licence number plates are displayed on the motor vehicle in the prescribed manner and if the licence number plates have not been issued the registration mark is displayed on the motor vehicle in the prescribed manner. (2) Nothing in this section shall apply to a motor vehicle while being driven within the limits of jurisdiction of a registering authority to or from the appropriate place of registration for the purpose of being registered under section 24, 26 or 40 or to a motor vehicle exempted from the provisions of this Chapter while in the possession of a dealer in motor vehicles. 29. Effectiveness of certificate of registration.. (1) Subject to the other provisions of this section, a motor vehicle registered by a competent authority in any part of Pakistan not included in the Province under the law relating to motor vehicle in force in such part, shall remain effective in the Province: (2) The registration certificate of the vehicles registered in any part of Pakistan other than the Province shall conform to and substantially contain the same particulars as in the Form G as set forth in the First Schedule. (3) If a registration certificate is issued by an authority specified in subsection (1) and it complies with the requirements of subsection (2), the certificate shall be effective throughout the Civil Petitions No.423-K & 472-K Of 2015 P a g e | - 9 - Province as if it is a certificate of registration issued under this Ordinance and the provisions of this Ordinance shall apply to such certificate. (4) Nothing in this section shall apply to a motor vehicle previously registered in the Province if the certificate of registration of the vehicle is, for the time being, suspended or cancelled for any reasons other than permanent removal of the vehicle from the Province; and 44. Transport vehicle not to be used or driven without permit.. (1) No owner of a transport vehicle shall use or permit the use of, and no driver of a transport vehicle shall drive or cause or permit to be driven, the vehicle in any public place, save in accordance with the conditions of a permit authorise the use or driving of the vehicle in such place granted or counter-signed by a Regional or Provincial Transport Authority: Provided that a stage-carriage permit shall, subject to any conditions that may be specified in the permit authorise the use of the vehicle as a contract carriage: Provided further that a stage-carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods vehicle either when carrying passengers or not: Provided also that a public carrier’s permits shall, subject to any conditions that may be specified in the permit authorities the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him. (2) In determining, for the purposes of this Chapter, whether a transport vehicle is or is not used for the carriage of goods for hire or reward— (a) The delivery or collection by or on behalf of the owner of goods sold, used or let on hire or hire purchase in the course of any trade or business carried on by him other than the trade or business of providing transport, or (b) the delivery or collection by or on behalf of the owner of goods which have been or which are to be subject to a process or treatment in the course of a trade or business carried on by him, or Civil Petitions No.423-K & 472-K Of 2015 P a g e | - 10 - (c) the carriage of goods in a transport vehicle by a manufacturer of or agent or declare in such goods whilst the vehicle is being used for demonstration purposes, shall not be deemed to constitute a carrying of the goods for hire or rewards; but the carriage in a transport vehicle of goods by a person not being a dealer in such goods who has acquired temporary ownership of the goods for the purpose of transporting them to another place and there relinquishing ownership shall be deemed to constitute a carrying of the goods for hire or reward. (3) Sub-section (1) shall not apply:-- (a) to any transport vehicle owned by or on behalf of the Central or any Provincial government and used for public purposes unconnected with any commercial enterprise; (b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleaning, watering or conservancy purposes; (c) to any emergency vehicle; (d) to any transport vehicle used for any other public purpose prescribed in this behalf; (f) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety; (g) to any school bus; or (h) to any trailer used for any purpose other than the carriage of goods for hire or reward when drawns by a motor vehicle constructed for the carriage of not more than six passengers excluding the driver. (4) Subject to the provisions of sub-section (3), sub-section (1) shall, if Government by rules made under section 69 so prescribes, apply to any motor vehicle adapted to carry more than nine passengers excluding the driver.” Rules 197 and 197-A of the Motor Vehicles Rules, 1969 are as follows:- 197. Body Constructions.—(1) The body of every public service and goods vehicle including trailer shall be so Civil Petitions No.423-K & 472-K Of 2015 P a g e | - 11 - constructed and so fastened to the frame of the vehicle as to comply with such direction as may be issued by the Provincial Transport Authority from time to time. (2) No body shall be fastened to a public service or goods vehicle which has not been constructed by a person holding a motor vehicle body-builder’s licence from the Provincial Transport Authority in Form B.B.L. (3) Application for a motor vehicle body-builder’s licence shall be made in Form B.B.L.A and shall be addressed to the Provincial Transport Authority at its office. (4) On receipt of an application in Form B.B.L.A the Provincial Transport Authority, after such enquiry as it may in any case deem necessary, either reject the application or grant a licence in Form B.B.L on the conditions specified therein. (5) A licence granted under the preceding sub-rule may be cancelled by the Provincial Transport Authority at any time for any breach of its conditions. (6) The Provincial Transport Authority may, by an order in writing, authorise the Chairman of Provincial Transport Authority or the Chairman of any Regional Transport Authority to grant and renew the body-builder’s licence under this rule. 197-A. Grant of manufacturing/assembling licence of motor cab rickshaw/motor cycle rickshaw.— (1) The Provincial Transport Authority may grant a licence for manufacturing or assembling of engine or chassis of the motor cab rickshaw/motor cycle rickshaw to the registered Firm or a Company having a sufficient space for the purpose under a specified registered trade mark. (2) The licence referred in the preceding sub-rule shall be subject to the conditions/standard specifications prescribed by the Provincial Transport Authority. (3) The Motor Vehicles Examiner shall be authorized to check and to issue a certificate regarding confirmation of standards specified by the Provincial Transport Authority. (4) The grant of licence for the assembling or manufacturing or engine or chassis of a motor cab rickshaw/motor cycle rickshaw may remain valid for one year subject to deposit of fee of Rs.20,000. Civil Petitions No.423-K & 472-K Of 2015 P a g e | - 12 - (5) The renewal fee of the above-referred licence for one year shall be Rs.15,000. 6. Obviously, there are penalty provisions both in the Ordinance and the Rules. Reading of the above provisions of the Ordinance and the Rules rests upon the Provincial Transport Authority mandatory duty to ensure that Qingqi Rickshaws in order they are allowed to ply on the roads comply with all the above conditions and further ensure that their driver is a duly licensed person and has posted on the Qingqi Rickshaws rate of charges/fare that will be charged from the passengers. Rule 197, as noted above, specifically provides that a person who constructs the body of a public service vehicle shall be duly licensed one from the Provincial Transport Authority and Rule 197-A provides that the Provincial Transport Authority will grant licence for manufacturing or assembling of engine or chassis of the motor cab rickshaw/motor cycle rickshaw to the registered firm or company having sufficient space for the purpose under a specified registered trade mark. At the same time, it is the bounden duty of the State to protect the life or liberty of its citizen as has been so provided in Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 that no person shall be deprived of life or liberty. The State is required to ensure that none of its citizen through its act or neglect or in failing to comply the relevant laws jeopardize life or liberty of its citizen. Thus, the State is required to ensure as its bounden duty that all public transport vehicles including Qingqi Rickshaws are those which are constructed and manufactured by duly authorized constructors and manufacturers according to the legally specified design, specifications and standards and further ensure that they are fit to ply on roads and are registered with the sanctioned route permit with specified route driven by duly licensed driver. This is the most basic requirement of the law which has to be followed in all respects by the Provincial Transport Authorities and other Government functionaries dealing with plying of the Qingqi Rickshaws on the roads. 7. After having heard the parties and examined the relevant provisions of the law and as agreed, we direct as follows : 1. That all Provincial Transport Authorities of the four Provinces of country shall ensure plying of only those Civil Petitions No.423-K & 472-K Of 2015 P a g e | - 13 - Qingqi Rickshaws which are constructed and manufactured by duly registered and authorized constructors and manufacturers, according to the legally approved design, specifications and standards ensuring safety and convenience of not only the driver but also of its passengers; 2. That all such Qingqi Rickshaws shall obtain certificate of fitness so also certificate of road worthiness from the concerned authorities which shall be displayed on each of the Qingqi Rickshaws prior to their plying on the roads; 3. That all such Qingqi Rickshaws shall be duly registered with the relevant Excise & Taxation Department and their registration number shall be displaced on it; 4. That the approved rate of charges/fare for specified routes shall be displayed on all such Qingqi Rickshaws, prior to their plying on such routes; and 5. That the seating capacity of Qingqi Rickshaws, allowed to be plied on roads, shall not be more than four passengers excluding its driver; 6. The Qingqi Rickshaw Drivers shall have valid driving licence while driving Qingqi Rickshaws; and 7. All four Provinces of the country shall ensure that the above conditions are fulfilled in every respect and they continue to do so for permitting plying of Qingqi Rickshaws on the roads. In case, any of the Qingqi Rickshaw is found to be plying on roads without fulfilling the above conditions, the official(s) of the relevant Department(s) shall be proceeded against not only departmentally but also on criminal side. 8. On compliance of the above conditions/directions the Qingqi Rickshaws are allowed to be plied on the roads that too on specified routes. These petitions, in the above terms, stand disposed of. Bench-V Islamabad 29.03.2017 APPROVED FOR REPORTING JUDGE *Hashmi* JUDGE

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE SYED MANSOOR ALI SHAH Civil Petition No. 4387 of 2021 (On appeal from the judgment/order dated 27.07.2021 of the High Court of Sindh, Karachi passed in CP No.D-4048/2021). Syed Khursheed Ahmed Shah …Petitioner(s) Versus The State …Respondent(s) For the Petitioner(s) : Mr. M. Makhdoom Ali Khan, Sr. ASC Mr. Mohsin Shahwani, ASC For Respondent(s) : Mr. Sattar Awan, Spl. Prosecutor Mr. Kashan, I.O. Date of Hearing : 21.10.2021 O R D E R UMAR ATA BANDIAL, J.- For reasons to be recorded later, this petition is converted into appeal and allowed. The petitioner is granted bail on the merits of the case subject to his furnishing bail bonds in the sum of Rs.10/- million with one surety in the like amount to the satisfaction of the learned Trial Court. The name of the petitioner shall be placed on the ECL subject to appropriate relief that may be granted by the learned Accountability Court on account of exigencies in his case. Judge Islamabad 21.10.2021 Naseer Judge Not approved for reporting

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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. 4428 OF 2019 (Against the judgment dated 31.10.2019 of the Balochistan Service Tribunal, Quetta passed in Appeal No.490/2018) Muhammad Khaliq Mandokhail …Petitioner(s) Versus Government of Balochistan through Chief Secretary, Civil Secretariat, Quetta and another …Respondent(s) For the petitioner(s): Mr. Muhammad Shoaib Shaheen, ASC For the respondent(s): Not represented Date of hearing: 16.02.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- The instant petition under Article under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by the petitioner calling in question the judgment of the Balochistan Service Tribunal, Quetta dated 31.10.2019 whereby the Service Appeal filed by him seeking correction of date of birth in the service record was dismissed. 2. Briefly stated the facts of the matter are that the petitioner was appointed as Naib Tehsildar in the Revenue Department of Government of Balochistan on 18.08.1992. He was promoted to the Post of Tehsildar vide notification dated 07.03.2010 and he was further promoted to BPS-18 vide notification dated 18.10.2017. The date of birth of the petitioner was mentioned in the Secondary School Certificate as 01.03.1959, while in the service book, it was registered as 20.12.1963. However, the petitioner approached the Board of Intermediate and Secondary Education, Quetta to get his date of birth corrected in the Secondary School Certificate in the year 2014 after the lapse of 22 years. The said certificate was duly issued to him on 29.12.2014 by correcting the Civil Petition No.4428 of 2019 -: 2 :- date of birth of the petitioner from 01.03.1959 to 20.12.1963. The petitioner after securing correction of date of birth in the Secondary School Certificate, also got his date of birth corrected from NADRA in his CNIC. The department issued seniority lists dated 15.10.2014 and 03.01.2018, however, the date of birth of the petitioner was mentioned as 01.03.1959. The petitioner being aggrieved by the seniority lists duly issued by the department filed objections before the competent authority but the objections raised by the petitioner were not addressed and the department paid no heed to it. Consequently, on 27.09.2018 a notification was issued by the department regarding the date of retirement of the petitioner, after attaining the age of superannuation, with effect from 28.02.2019 basing his date of birth as 01.03.1959. Against the notification of superannuation, the petitioner filed departmental appeal which was rejected vide order dated 02.01.2018. Being aggrieved by the rejection of departmental appeal, the petitioner preferred service appeal before the Balochistan Service Tribunal, Quetta, which was dismissed by the Tribunal vide judgment dated 31.10.2019. Hence this petition for leave to appeal. 3. Learned counsel for the petitioner inter alia contends that in the service book the date of birth of the petitioner was rightly mentioned as 20.12.1963 and according to law, the first date of birth entered in the service record has to be presumed to be the correct date of birth; that the learned Tribunal has failed to take into consideration Rule 11 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, according to which the date of birth of a civil servant once recorded at the time of joining the government service shall be final and no alteration therein shall be permissible; that the learned Tribunal has also not considered that the petitioner’s date of birth recorded in the matriculation certificate was corrected by the Board by issuing a duplicate certificate. He lastly added that while passing the impugned judgment, the learned Service Tribunal has erred in law, therefore, the same is not sustainable in the eyes of law. 4. We have heard learned counsel for the petitioner and have perused the available record. Civil Petition No.4428 of 2019 -: 3 :- 5. We have noticed that the petitioner was appointed as Naib Tehsildar on 18.08.1992. The academic credentials of the petitioner clearly reflect that the date of birth was recorded as 01.03.1959 on every document including NADRA record. It was very surprising that the petitioner moved for correction of his date of birth after the lapse of 22 years of continuous service in the year 2014. He approached the Board of Intermediate and Secondary Education, Quetta to get his date of birth changed from 01.03.1959 to 20.12.1963. It is surprising that the Board without any hesitation proceeded according to the whims of the petitioner and submitted itself before the desire of the petitioner, although the Board had no authority to entertain such a request and made alteration of its own. We have specifically confronted the learned counsel to show us from the record the material placed before the Board which prompted the Board to come for the rescue of the petitioner and act according to the illegal desire of the petitioner. It has been informed that an affidavit was tendered, which was made basis for conversion of the date of birth from 01.03.1959 to 20.12.1963. It is established law that while seeking such like correction, 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. In the absence of any declaration the Board was not empowered to change the date of birth. The whole proceedings carried out by the Board are nothing but squarely smack mala fide at the end of Board as well as the litigant. The said conduct of the Board is deprecated. As a consequence the proceedings carried out regarding the change of date of birth are prima facie based upon an act of Board which is mala fide based upon extraneous consideration, therefore, any superstructure raised over it would fall to the ground. As we have noticed that the whole proceedings were carried out after the lapse of 22 years of active service, therefore, it can be safely held that the proceedings carried out by the petitioner were based upon an afterthought just to prolong the service tenure and it was nothing but an attempt to continue with the service on the basis of frivolous and tainted documents which speak volume in relation to its genuineness. This Court in a number of cases has discouraged change in the date of birth of a civil servant, which could be for the Civil Petition No.4428 of 2019 -: 4 :- purpose of unduly enhancing the tenure of service in employment. In the case of Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456), it has been held by this Court that a civil servant could not seek alteration in his date of birth at the verge of his retirement. The material produced and examined by the Tribunal clearly suggests that the petitioner got changed his date of birth when he was at the verge of his retirement. 6. Now we will advert to the contention raised by the learned counsel for the petitioner that according to Rule 11 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, the date of birth of a civil servant once recorded at the time of joining the government service shall be final and no alteration therein shall be permissible. It would be in order to reproduce the said rule, which reads as under:- “11. The date of birth of a civil servant once recorded at the time of joining the Government service shall be final and no alteration therein shall be permissible, except, where a clerical mistake occurs in recording the date of birth in the Service record: Provided that, no request of a civil servant on this ground shall be entertained after a period of two years from the date of such entry in his service record; and all such cases shall be decided by the Appointing Authority, on the recommendation of an Enquiry Committee with the following composition: 1. Senior Member, Board of Revenue Chairman 2. Secretary, S&GAD Member 3. Secretary, Law Department. Member 4. Secretary of the concerned Co-opted Member Administrative Department” 7. A bare perusal of the aforesaid Rule makes it abundantly clear that the date of birth of a civil servant once recorded at the time of joining of Government service as a general principle shall be final and would not be altered except (i) there is a clerical mistake (ii) the change is sought within the period of two years. This Rule narrows down the scope for change of date of birth by stipulating that no alteration shall be permissible after the expiry of the time as mandated in the said rule. Otherwise, the service book is only a piecemeal and for all intents and purposes it would not be considered as a complete service record. We have noticed that the Civil Petition No.4428 of 2019 -: 5 :- other documents relating to his service record including the academic record, the CNIC, the seniority lists prepared on different occasions, the ACRs and the retirement notification, all conjointly reflect that the date of birth of the petitioner was incorporated as 01.03.1959. The petitioner joined the service on 18.08.1992, whereas he agitated his grievances in the year 2014 after the lapse of 22 years. Hence keeping in view the facts and circumstances, it is clear that the proceedings initiated by the petitioner seeking alteration in the date of birth while pressing in Rule 11 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 were intended on the basis of extraneous considerations just to prolong the service period. The whole proceedings carried out by the petitioner can be dubbed as tainted on this score alone. Otherwise no substantial question of law of public importance within the meaning of Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been raised before this Court. 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 16th of February, 2021 Not approved for reporting Waqas Naseer/*

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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed Mr. Justice Munib Akhtar C.P.No.4439 of 2017 and CMA No.8554 of 2017 [Against the order dated 17.10.2017, passed by the Federal Service Tribunal, Islamabad in R.P.No.176/2017 in Appeal No.394(P)CS/2015] Shams ur Rehman. …Petitioner(s) Versus Military Accountant General, Rawalpindi and another. …Respondent(s) For the Petitioner(s) : Mrs. Misbah Gulnar Sharif, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent(s) : Mr. Sajid Ilyas Bhatti, Addl.A.G Imran Feroze, D.R. AAO, Litigation Date of Hearing : 18.10.2019 O R D E R Gulzar Ahmed, J.— The petitioner was appointed as Senior Auditor in BPS-11 and was granted selection grade BPS-15 on the basis of MAG letter dated 15.11.2006. The selection grade was granted to 136 Senior Auditors and the name of the petitioner appeared at Sr.No.109 of the list of said Senior Auditors. Pay was fixed vide letter dated 21.12.2006 pursuant to which the petitioner started getting pay of selection grade BPS-15. Vide letter dated 11.02.2015, the pay of the petitioner was refixed in BPS-11, on cancellation of his selection grade of BPS-15, which was erroneously granted to him w.e.f. 25.03.1996. This letter was challenged by the petitioner before the Federal Service Tribunal, Islamabad (the Tribunal), who vide its judgment dated 18.09.2017 2-C.P.No.4439 of 2017 and CMA No.8554 of 2017 2 dismissed the service appeal of the petitioner. The petitioner filed review petition that too was dismissed vide impugned order dated 17.10.2017. 2. The only submission of the learned counsel for the petitioner is that the petitioner continued to work in selection grade BPS-15 and was being paid emoluments of the said grade not on account of his own fault but on account of measures taken by the department itself and that for almost 9 years the petitioner had served in the position of BPS-15 and was paid the benefits of such post and now through letter dated 11.02.2015 while cancelling selection grade and reverting the petitioner back to BPS- 11, the respondent cannot recover salary and benefits paid to him on the principle of locus poenitentiae and in this regard she has relied upon the judgment of this Court in the case of the Engineering-in-Chief Branch through Ministry of Defence and another vs. Jalaluddin (PLD 1992 Supreme Court 207). 3. Learned Additional Attorney General, on the other hand, has contended that the very judgment was not challenged by the petitioner but only the review petition was filed and the Tribunal having found no ground available for review and dismissed the same. He further contended that the petitioner cannot retain benefit of selection grade BPS-15 as it was erroneously granted to him. 4. Be that as it may, we have noted that in the judgment of the Tribunal this very aspect of the matter has been dealt with in para-10, where it was observed that the principle of locus poenitentiae does not mean that the benefit once accrued illegally 2-C.P.No.4439 of 2017 and CMA No.8554 of 2017 3 in favour of any person would stand protected for all times to come. Learned counsel for the petitioner states that this very part of the judgment was sought to be reviewed but the Tribunal incidentally did not appreciate the same. For almost 9 years the petitioner has served in selection grade BPS-15 and has received the emoluments and benefits of such post. It is not in dispute that the selection grade BPS-15 was granted to the petitioner by the department itself and the petitioner apparently had no role in obtaining the post of selection grade BPS-15 for that no such allegation whatsoever is made against him. The respondents have merely pleaded mistake, as only 25% of posts from BPS-11 were required to be filed in the selection grade BPS-15 and it was subsequently realized by the department itself that the petitioner did not fall within the 25% quota and thus was recalled from the post of selection grade BPS-15 and reverted him back to the post of BPS-11. For 9 years the petitioner performed the work of a higher post of selection grade BPS-15 and thus on the principle of locus ppoenitentiae the benefits paid to him could not be recovered from him for that such principle would not apply. Further, in our view the principle of estoppel will also be applicable as against the department from recovering the emoluments and benefits of BPS- 15 from the petitioner. In the case cited by the learned counsel for the petitioner, this Court has observed as follows: “Locus poenitentia is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to know that on the basis of incorrect 2-C.P.No.4439 of 2017 and CMA No.8554 of 2017 4 letter, the respondent was granted Grade-11, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case. However, as the respondent had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during the period when the latter remained in the field.” Further in a similar case of Mst. Sajida Javed vs. Director of Secondary Education, Lahore Division and others (2007 PLC (C.S) 364), this Court held as follows: “Appointment of the petitioner to the post of Senior School Teacher in BS-16 vide office order dated 11.03.1996 is not disputed. It is also not disputed that she actually served against this post in different Girls Middle Schools wherever posted. The fact that the department realized its mistake after about four years would show that petitioner herself was not at fault in procuring the appointment or her posting in different schools in Sheikhupura District by unfair means. By accepting the offer validly made to her by the Department on the basis of her qualification and training in the relevant field, a valuable right had accrued to the petitioner and she could not be made to suffer for the mistake or error of the officials of respondent-Department. Indeed, the offer had been accepted and actually acted upon for almost four years. The case would, thus, be governed by the principle of locus poenitentiae and, in our view, the Department cannot retrace the steps already taken and lawfully acted upon by the petitioner.” 5. Thus, keeping in view the above principles as enunciated by this Court in the two cited judgments, the finding of the Tribunal by which it has allowed recovery of emoluments and benefits from the petitioner that of a selection grade BPS-15, was a blatant mistake apparent on the face of the record of the Tribunal judgment and the Tribunal in exercise of its review jurisdiction ought to have noted the same and also rectified such mistake from its judgment. By not doing so the Tribunal apparently has failed to 2-C.P.No.4439 of 2017 and CMA No.8554 of 2017 5 exercise its review jurisdiction, which was available in the case in hand and by not doing so, there is apparent illegality in the impugned order of the Tribunal. Thus, we are persuaded not to agree with the impugned order of the Tribunal to the extent as noted above. The impugned order of the Tribunal dated 17.10.2017 is, therefore, set aside. The petition is converted into an appeal and is allowed to the extent as noted above. JUDGE Bench-II ISLAMABAD 18.10.2019 APPROVED FOR REPORTING Rabbani*/ JUDGE

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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.44 of 2019 (Against order dated 11.12.2018 passed by the Peshawar High Court Peshawar in W.P. No.2395-P of 2018) Sadiq Ullah & another .…Petitioner(s) Versus The State and another ….Respondent(s) For the Petitioner(s): Mr. Hussain Ali, ASC For the State: Malik Akhtar Hussain, Addl. A.G. KPK For the Respondent(s): Mr. Abdul Fayyaz, ASC Date of hearing: 27.07.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Asma Rani, 18/19, a medical student, was shot dead at 15:20 p.m. on 27.1.2018 within the remit of Police Station K.D.A. Kohat; incident was reported by her brother Muhammad Irfan, who blamed the petitioners for the crime; deceased’s refusal to tie knot with Mujahid Ullah accused is cited as a motive behind the gruesome incident that sent a shock wave throughout the realm. It is in this backdrop that the accused were sent to face trial before a Court constituted under the Anti Terrorism Act, 1997; the accused pleaded for the trial in regular jurisdiction, a request declined by the learned Special Judge vide order dated 7.5.2018, upheld by a learned Division Bench of the Peshawar High Court vide impugned judgment dated 11.12.2018, vires whereof, are being assailed primarily on the ground that notwithstanding the shocking nature of the incident, the accused are entitled for a trial in regular jurisdiction as the facts and circumstances of the case san nexus with “Terrorism” as contemplated by section 6 of the Act ibid; reliance has been placed on the case of Ghulam Hussain & others Vs. The State & others (PLD 2020 SC 61) wherein this Court has authoritatively settled juridical parameters for trial of offences in the special jurisdiction. Learned counsel for the respondent has defended the impugned judgment on the ground Civil Petition No.44 of 2019 2 that the brutality inflicted upon the poor soul and the ensuing aftermaths thereof not only devastated a family who lost a brilliant youth but also rippled lasting fear that necessitated an appropriate and speedy response, being ensured by the Special Court; the learned counsel has also alleged threat to the witnesses, vulnerably placed, to argue that remission of the case into the regular jurisdiction would obstruct the conclusion of trial. 2. Heard. Record perused. 3. There are no benign murders nor the aftermaths of violence endured by its victims and anguish suffered by their families can be euphemistically quantified in an empirical gauge, though the magnitude thereof and concomitant loss differently impact the surroundings, inevitably to be gripped by fear and shock, however, the intensity of brutality and loss of life, consequent thereupon, by themselves do not bring a violent act within the contemplated purview of “Terrorism”, a distinct phenomena to achieve, through violent means, ends other than settlement of personal scores, therefore, while the tragedy that befell upon the poor soul evokes profound shock and deserves to be appropriately visited, on the strength of evidence, so as to ensure justice to the family, it nonetheless, cannot be equated with “Terrorism” to dock the accused in special jurisdiction, therefore, the case is withdrawn from the Court of Judge ATC-I Peshawar and entrusted to the learned Sessions Judge Peshawar; he shall conclude the trial in jail premises with all convenient dispatch by recording evidence of the remaining witnesses. The Chief Secretary, Khyber Pakhtun Khaw, shall make arrangements of holding of trial in jail premises. The Inspector General of Police, Khyber Pakhtun Khaw, shall ensure safe conduct to the witnesses. The impugned judgments are set aside; petition is converted into appeal and allowed in the above terms. Judge Judge Judge Islamabad, the 27th July, 2020 Not approved for reporting Azmat/-

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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 QAZI MUHAMMAD AMIN AHMED CIVIL PETITIONS NOS. 4540 & 4541 OF 2021 (Against the order dated 3.8.2021 of the Lahore High Court, Lahore passed in WP No.48537/21 & WP No.48555/21) Federation of Pakistan thr. Secy. M/o Industries & Production and another … Petitioners in both cases Versus Hamza Sugar Mills Ltd. Rahim Yar Khan and others … Respondents in CP.4540/21 - Hunza Sugar Mills Ltd., Lahore and others … Respondents in CP.4541/21 For the Petitioner(s): Ch. Aamir Rehman, Addl. A.G. Mr. Asad Ali Bajwa, DAG For Respondents Nos.1-8: Mr. Ali Sibtain Fazli, ASC Ch. Akhtar Ali, AOR (in CP-4541/21) For Respondents Nos.1-8: Mr. Imtiaz Rashid Siddiqui, ASC Mr. Shehryar Kasuri, ASC Mr. Husnain Ibrahim Kazmi, ASC (in CP-4540/21) For Respondents Nos.5-6: Mr. Salman Akram Raja, ASC (in CP-4540/21) Date of hearing: 12.08.2021 O R D E R Umar Ata Bandial, J. Learned Additional Attorney General has read to us from an order dated 07.04.2021 passed in Writ Petition No.22977/2021. That order refers to meetings being conducted by the Federal and Provincial Government authorities with the management of sugar mills in the Province of Punjab for fixing the price of sugar. The CP.4540-4541 of 2021 2 minutes of that meeting are reproduced in the said order. It appears that a pricing formula of sugar, ex factory and retail, based on the costs incurred by the sugar mills was settled with the government authorities. However, the latter fixed a different price of sugar on which stocks were to be released by sugar mills in the market. This intervention by the regulators was challenged in the said writ petition for being incompetent and without lawful authority. However, the Court ordered the requisite stock to be released for the month of Ramadan at the disputed price. The order also refers to an earlier proceedings pending in the High Court in Writ Petition No.3834 of 2020 wherein the question of vires of similar impugned action is already under consideration. Several writ petitions have since been filed by interests in the sugar industry. The order dated 03.08.2021 impugned before us is an interim order passed in a recent writ petition. That order is assailed by the Federal Government for having been passed on the first date of hearing without affording any opportunity of hearing to the government regulators whose notification dated 30.07.2021 fixing the policy sale price of sugar has been put in abeyance. A surety bond for the differential amount from the higher price charged by the respondent sugar mills has been ordered as security. 2. The Constitutional Courts of the country have a duty to resolve legal disputes coming before them in accordance with the Constitution and the law. In the discharge of their duties and functions, the Courts do not supervise pricing nor monitor profit and loss dealings by or between the stakeholders. In our view, the High Court has in the present case entered the uncertain territory of monitoring commercial and policy terms regulating the supply of an edible commodity in the market. This endeavour is far removed from its jurisdiction vested by Article 199 CP.4540-4541 of 2021 3 of the Constitution and is likely to involve technical details that are outside the realm of judicial adjudication. The common questions of law and jurisdiction raised in the petitions pending before the High Court are already noted for its determination in Writ Petition No.3834 of 2020. Notices under Order XXVII-A CPC have also been issued to the Law Officers of the Federation and the Province. The respondent private parties who are present before us are also ready to proceed with their cases. We consider that judicial consideration by the High Court ought to be devoted to resolving the legal dispute between the parties rather than the pricing mechanism regulating commercial and policy matters. Accordingly, the learned High Court shall make a serious effort to decide the legal issues arising for determination in this matter within a fortnight from the date of receipt of this order. If either party prolongs the proceedings on account of adjournments or otherwise they shall be subject to penalization, inter alia, by modification of the terms of the interim relief ordered below. 3. The impugned interim order dated 3.8.2021 protects the interest of the respondents mill-owners on the strength of a surety bond equal to the difference in price charged by them and the price fixed by the regulators on 30.07.2021. We do not consider that the surety bond constitutes sufficient security for the regulators. According to the impugned order, the Cane Commissioner is maintaining the records of production and sales of all sugar mills in the Province. He shall continue to do so and keep an account of the amount charged and collected by the sugar mills and the amount fixed by the regulators at the stage (ex-factory and/or retail) specified by the latter. The difference in the two amounts shall be deposited contemporaneously by each sugar mill with the Deputy CP.4540-4541 of 2021 4 Registrar (Judicial) of the Lahore High Court, Lahore. Such deposits shall be made voluntarily but shall be subject to replenishment forthwith to the correct amount that is notified to the erring sugar mill by the Cane Commissioner. In case of dispute about the amount of the requisite deposit to be made during the pendency of the petition before the learned High Court, the amount fixed by the Cane Commissioner shall prevail. These petitions are converted into appeals and are disposed of in the terms mentioned above. JUDGE JUDGE JUDGE Islamabad, the 12th August, 2021 M. Azhar Malik+ Irshad Hussain/* NOT APPROVED FOR REPORTING.

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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 AHMAD CIVIL PETITION NO.4570 OF 2019 Against the judgment dated 11.10. 2019 passed by Islamabad High Court, Islamabad in W.P. No. 2948 of 2018 Nadia Naz …Petitioner(s) VERSUS The President of Islamic Republic of Pakistan, President House, Islamabad & others …Respondent(s) For the Petitioner(s): In person a/w Nadeem A. Sh, ASC (as probono) For Respondent No.6: For Respondent No.11: Mr. Agha Muhammad Ali, ASC Mr. M. Sharif Janjua, AOR Mr. M. Nazeer Jawad, ASC Syed Rifaqat Hussain Shah, AOR Date of Hearing: 22.9.2020 JUDGMENT MUSHIR ALAM, J.- The facts leading to the instant petition are that the petitioner was appointed on temporary basis as Resource Person (Camera Department) at PTV on 04.09.2007. She filed a complaint alleging workplace harassment under the “Protection against Harassment of Women at Workplace Act, 2010” (‘the Act, 2010’) before the Federal Ombudsman for Protection against Harassment of Women at Workplace against current respondents No 4 & 5 on 08.03.2016. The record shows that during the pendency of complaint before the Federal Ombudsman, the petitioner was proceeded against departmentally, charge-sheeted, show-caused, and consequently terminated from service w.e.f. 13.05.2017 vide order dated 17.05.2016. It may be noted that the Petitioner took no exception to her termination before any forum which, therefore, attained finality. However, the petitioner continued pouring various applications before the Federal Ombudsman, including actions taken against her for disciplinary proceedings. CIVIL PETITION NO.4570 OF 2019 2 2. The learned Federal Ombudsman, vide order dated 16.10.2017, not only took cognizance of disciplinary proceedings against the Petitioner, but treated action and proceedings in the departmental enquiry as harassment, as detailed in paragraph 24 of the order, and also condemned the Respondents No. 4 and 5, namely Saeed Ather who was Controller Administration and Personnel, and Abdul Rashid who held the post of Controller. Respondents No.4 and 5 were ordered to be proceeded against and “the penalty of withholding of promotion be imposed on them for a period of two years under Section 4(4)(i)(b) of Act of 2010”. The said respondents were further burdened with fine of Rs.100,000/- which was to be paid to the Petitioner. The departmental disciplinary proceedings against the Petitioner were set-aside and she was reinstated into service. In paragraph 26 of the order, the Ministry of information was directed to investigate on the Department of Administration and Personnel to root out the cause of this perpetual harassment against the Appellant and take appropriate action against the conspirators including and besides respondents in the matter. 3. The Ministry of Information, Broadcasting and National Heritage, created an inter-departmental inquiry commission, which observed in its inquiry report dated 05.07.2017 that ‘no incident of harassment had taken place’. 4. The Federal Ombudsman’s Order dated 16.10.2017 was successfully challenged by the affectees’ respondents before the President of Pakistan. The Petitioner also made as many as seven (7) Complaints before the President of Pakistan. All the Representations by the affectees-Respondents and Complaints filed by the petitioner were heard, the record was examined, and the case was decided together. 5. The President of Pakistan, on examining the record came to a conclusion that in consideration of the fact that the decision of learned Federal Ombudsman is exceptional in the eyes of law and required to be set-aside by the appellate forum holding that “Undoubtedly, the issue of the complainant revolves around the component of discipline/administrative issue in service matter and not CIVIL PETITION NO.4570 OF 2019 3 covered under sexual harassment as mentioned in the particular definition of sexual harassment provided by the Protection against Harassment of Women at the Workplace Act, 2010, elaborated supra.” and “Thus the complainant could not able to prove the allegations of sexual harassment before the appellate forum beyond any shadow of doubt.” Consequently, representations filed by the Respondents were accepted, while the representation of the complainant was set-aside. However, the complainant was left with option to “avail the remedy for redressal of her grievance in service/administrative matter before the competent forum under the law, if so desired”. 6. The petitioner challenged the order of the President dated 05.01.2018 before the learned Islamabad High Court which upheld the order of the President vide judgment dated 11.10.2019 impugned before this Court through the instant petition. 7. The learned Bench of the Islamabad High Court, placing reliance on the case of “Shahina Masood etc. vs. Federal Ombudsman Secretariat for Protection of against Harassment at Workplace etc” rendered in Writ Petition No. 1665-2019, (since reported as reported as 2020 PLC (CS) 186), wherein it was held that “when the definition of a particular expression has been given in a statute then its ordinary meaning becomes irrelevant nor, can it be considered”. The cited judgment, taking into consideration the definition of harassment as expounded in the case, examined the merits of the case in hand and came to a conclusion that no case for harassment, within the contemplation of section 2(h) of the Act, 2010 was made out. It was further held that the learned Federal Ombudsman had no jurisdiction to order re-instatement of the complainant. The Order of the President was accordingly maintained through judgment impugned before us. 8. Learned counsel for the petitioner, appeared as probono counsel, along with the petitioner, contended that she was subjected to workplace harassment by her colleagues/respondents and when she filed a complaint before the Federal Ombudsman under the Act 2010, she was dragged into unnecessary disciplinary proceedings and departmental inquiries. It was further urged that instead of taking action against the harassers and the delinquent officers, she was victimized; the departmental proceedings were drawn against her and CIVIL PETITION NO.4570 OF 2019 4 she was terminated from services vide order dated 17.05.2016 illegally and unjustifiably. The learned counsel for the petitioner supported the order of the Federal Ombudsman’s dated 16.10.2017 to be just and argued that she was rightly reinstated into service. He further argued that the Federal Ombudsman was justified to direct penal action against the respondents on cogent reasons. It was contended that the impugned judgment dated 26.07.2019 of the Islamabad High Court, upholding the order of the President and dismissing the writ petition of the petitioner, is not tenable under the law, facts, and circumstances of the case due to which it needs to be set aside and the order of the Federal Ombudsman to be restored. 9. Learned counsels for the respondents supported the impugned decision of the President of Pakistan and judgment of the High Court, by contending that only when an act of harassment, as defined in the Act of 2010, is established against the accused that the Federal Ombudsman has authority and jurisdiction either to impose minor and/or major penalties, as prescribed under Section 4 (4) of the Act, 2010 and not otherwise. It was argued that the Federal Ombudsman has no jurisdiction to attend or entertain complaints against disciplinary and departmental proceedings not relatable to harassment of the kind cognizable under the Act, of 2010 and pass any order to reinstate the petitioner into service under the provisions of the Act of 2010. Learned counsel placed reliance on a recent judgment of the Islamabad High Court, in the case titled Shahina Masood (supra), as relied in the impugned judgement. It was also argued that against the termination of service, despite the observation of the President in its order, the petitioner has till yet not challenged her termination, which has since attained finality. 10. We have heard the arguments and perused the record through the able assistance of the petitioner and the learned counsels for the parties. The learned bench of Islamabad High Court drew the distinction between harassment in a generic sense and harassment as an act made actionable under section 2 (h) of the Act, 2010. The learned bench of the Islamabad High Court referred to paragraphs No. 6 to 10 of the judgment rendered by another bench in earlier case of CIVIL PETITION NO.4570 OF 2019 5 Shahina Masood1 (supra) to arrive at a conclusion that no case for interference in the order of the President is made out. 11. Two main questions that call for resolution in instant case, have attracted our attention are; 1) Whether the actionable “harassment”, as defined in section 2(h) of the Act, 2010, is of restricted application or applies to all manifestations of harassment. 2) Whether the Federal Ombudsman has the jurisdiction and/or authority to reinstate the petitioner into service under the provisions of the “Protection Against Harassment of Women at Workplace Act, 2010”? 12. The title and the preamble of “Protection Against Harassment of Women at the Workplace Act, 2010” hold out assurance to provide a legal regime for the “protection of women against harassment at workplace”. When the Act, 2010 is examined as a whole, it does not live up to expectation as title and preamble of the Act suggest. In its present form, surprisingly the harassment against which a woman is provided an assurance of protection is just another piece of cosmetic legislation; it is blinkered in its application. The Act, 2010 caters to grievance of the complainant [section 2(e)], may it be ‘men’ or ‘women’, against the act of misdemeanor defined as ‘harassment’ [under section 2(h)] on the part of an ‘accused’ [section 2(a)], who may either be an ‘employee’ or ‘employer’ of an organization, against whom a ‘complaint’ to the ‘Ombudsman’ [under section 8] or to the ‘Inquiry Committee’ [under section 4] is made. 13. Harassment, in all forms and manifestations, may it be based on race, gender, religion, disability, sexual orientation, age- related, an arrangement of quid pro quo, and/or sexual harassment etc2 affects and violates the dignity of a person3, as guaranteed under the 12020 PLC CS) 186 2 Equality Act 2010, Chapter 2, Section 4, each of the characteristics as noted herein are classified as protected characteristic and elaborately dealt with in UK Act. 3 Article 14 of the Constitution of Pakistan 1973 CIVIL PETITION NO.4570 OF 2019 6 Constitution of Pakistan, 1973. Even though anyone may be subject to sexual harassment, in a culture and society like Pakistan, women are the distressing majority of victims. Harassment in any society or organization is a testament to regressive behavior that creates an intimidating, hostile, degrading, humiliating, and offensive environment which has a devastating effect on any society or organization by adversely affecting its overall performance and development. The Act, 2010, rather than addressing issue of harassment in all its manifestation, as noted above, in a holistic manner, is a myopic piece of legislation that focused only on a minute faction of harassment4. The Act, 2010 confines or limits its application to sexualized forms, including orientation of unwanted or unwelcome behavior, or conduct displayed by an accused person towards a victim in any organization. It may be observed that insulting modesty or causing sexual harassment at work place or public place etc. has been criminalized under Section 509 of the Pakistan Penal Code, 1860, which is punishable for a term which may extend to three years, or with fine up to five hundred thousand rupees, or both w.e.f. 02.02.2010. 14. Attending to first formulation, it is of extreme importance to unravel the issue of explaining what does the term ‘harassment’ mean that has been made actionable wrong under the Act, 2010. Section 2(h) of the Act, 2010 clearly defines the term “harassment” as follows; “(h) harassment” means any unwelcome sexual advance, request for sexual favors or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment.” 15. As could be seen from the definition of harassment as reproduced above, any misdemeanor, behavior, or conduct unbecoming of an employee, or employer at the workplace towards a fellow employee or employer, in any organization, may it be generically classifiable harassment, is not actionable per-se under the Act, 2010, 4 Section 2(h) of the Act, 2010 CIVIL PETITION NO.4570 OF 2019 7 unless such behavior or conduct is shown to be inherently demonstrable of its ‘sexual’ nature. Any other demeaning attitude, behavior, or conduct which may amount to harassment in the generic sense of the word, as it is ordinarily understood, howsoever grave and devastating it may be on the victim, is not made actionable within the contemplation of actionable definition of “harassment” under section 2 (h) of the Act, 2010. Giving such restricted meaning to “actionable” harassment, by the legislature in its wisdom, impinges the very object and purpose for which the Act, 2010 was promulgated. The impact of harassment, as generically understood, and how restrictive its application has been made is very well articulated and thrashed out in paragraph 10 of the judgment rendered by the Islamabad High Court in the case of Shahida Masood5 (supra) which needs no further elaboration. 16. The Act, 2010 above has specifically been legislated to protect not only working women but men as well only against “harassment having sexual nature” at the workplace and, therefore, any conduct amounting to harassment of any other kind and nature, as noted in paragraph 13 above, despite howsoever distasteful and injurious, is not made cognizable before the Federal Ombudsman. The meaning of the term ‘harassment’ as given in Section 2 (h) of the Act, 2010 cannot be stretched to other conduct being not of sexual orientation. Apparently, the reason for limiting the actionable offence of ‘harassment’ could possibly be for the reason it may have a serious impact on all those involved, which includes both the potential ‘harasser’, the potential victims, and the responsibility for avoiding instances of harassment on workplace regulators. Such an approach is not unique to Pakistan and is in fact similarly followed in India. The Indian Supreme Court formulated the guideline known as Vishaka Guidelines6 which made it mandatory for institutions across the country to put in place measures to prevent and redress sexual harassment at the workplace. The Vishakha Guidelines laid the foundation for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. 5 2020 PLC (CS) 186 @193 6 Vishaka Guidelines formulated after the seminal decision in Vishaka v State of Rajasthan by the Supreme Court of India, concerning the gangrape of Bhanwari Devi, a Dalit women, in 1992. CIVIL PETITION NO.4570 OF 2019 8 “Section 2 (n) of the Act 2013 reads as follows: (n) “sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely: (i) physical contact and advances; or (ii) a demand or request for sexual favours; or (iii) making sexually coloured remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or non- verbal conduct of sexual nature; ” 17. The Vishaka Guidelines are regarded as the regulatory framework for dealing with sexual harassment against women at workplace in India. The focus under the Guidelines is on the reported conduct being sexual in nature and not otherwise. Likewise, under the Act, 2010, s.11 makes it obligatory on the part of employer to incorporate a ‘Code of Conduct for Protection against Harassment of Women at the Work Place’ as a part of management policy. It is appended to the Schedule to the Act, 2010, after recapitulating definition of Harassment as given in section 2(h) ibid, the explanation given under Clause (ii) of the Code of Conduct for Protection against Harassment of Women at Workplace is reproduced as follows: “Explanation: There are three significant manifestations of harassment in the work environment: a) Abuse of Authority: A demand by a person in authority, such as a supervisor, for sexual favors in order for the complainant to keep or obtain certain job benefits, be it a wage increase, a promotion, training opportunity, a transfer or the job itself. b) Creating a Hostile Environment: Any unwelcome sexual advance, request for sexual favors or other verbal or physical conduct of a sexual nature, which interferes with an individual’s work performance or creates an intimidating, hostile, abusive or offensive work environment. The typical “hostile environment” claim, in general requires the finding of a pattern of offensive conduct, however, in cases where the harassment is particularly severe, such as cases involving physical contact, a single offensive incident will constitute a violation. CIVIL PETITION NO.4570 OF 2019 9 c) Retaliation: The refusal to grant a sexual favor can result in retaliation, which may include limiting the employee’s options for future promotions or training, distorting the evaluation reports generating gossip against the employee or other ways of limiting access to his/her rights. Such behavior is also a part of the harassment.” 18. The Explanations, as reproduced above, reiterate and leave no room for doubt that the harassment made actionable under the Act, 2010 is confined to the manifestation of harassment that is inherently demonstrable of sexual orientation as defined in section 2(h) read with Explanations, as reproduced above, which is part of the Schedule of the Act, 2010.7 19. Contrastingly, in the United Kingdom, workplace harassment is approached in a refreshingly objective manner. It is more in line with the definition of ‘harassment’ as explained in the Oxford dictionary as: “The act of annoying or worrying somebody by putting pressure on them or saying or doing unpleasant things to them.” 20. Any kind of harassment based on the protected characteristics as noted in para 13 above and defined under section 4 of the UK Equality Act, 2010 is made actionable. Additionally, ‘harassment’ by itself, is simply defined as:8 “1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” 21. While our version of the legislation to protect women at workplaces against harassment is titled as ‘The Protection against Harassment of Women at the Workplace Act 2010’, however, when the 7 Section 2(c) and section 11 of the Act, 2010 8 (UK) Equality Act 2010, Chapter 2, Section 26 CIVIL PETITION NO.4570 OF 2019 10 scheme of the enactment is carefully examined, its contents and application has been restricted to harassment of a purely of sexual orientation and nature. It must be noted that under the Pakistani legislation on the subject, not only in the Preamble but also in the title of the Act, the term ‘harassment’ is used and not ‘sexual harassment’, but contrarily to the apparent intent, the meaning of the term ‘harassment’ has been explicitly given a restrictive meaning under clause (h) of Section 2 of the Act, 2010. Meanwhile, other acts of harassment, as noted in para 13 above, cannot be taken cognizance by the Ombudsman, in view of the limitation of authority and jurisdiction, to punish the harassment of the kind defined under the Act, 2010 and in a manner as provided under section 4 ibid.9 To our great regret, all such acts of harassment that fall beyond the pale of restricted definition of actionable harassment under section 2(h) ibid; can neither be made cognizable or punishable by the Inquiry Committee and/or the Ombudsman, in view of the fetters placed under Article 12 of the Constitution of Pakistan, 1973.10 The act, demeanor, behavior, and/or conduct that has been made cognizable is of limited application and, has been nailed down in the definition clause of section 2 (h) of the Act, 2010 and not as generically reflected either from Preamble or the title of the Act, 2010. The aggrieved person under the provisions of the Act, 2010 has the responsibility to prove that the perpetrator truly had an accompanying sexual intention or overture with his act, demeanor, behavior, and/or conduct. Since the Act, 2010 itself limits the protection it offers to the harassment having sexual orientation, the Court is shackled to interpret it in line with its express charging clause (h) of section 2 of the Act, 2010. Any other interpretation advanced by this Court to enlarge the scope of the charging section will violate the rights guaranteed under Article 12 of Constitution. There is no cavil to the proposition that the sexual conduct is cognizable under the provisions of the Act, 2010, however, as held by the President in its order, and as upheld through impugned judgment of the Islamabad High Court, the petitioner has failed to establish that the conduct on the part of respondents 4 & 5 actually amounted to sexual harassment within the contemplation of Act, 2010. 9 Limitation is place on all Courts to exercise jurisdiction as may be conferred by constitution or by law see Article 175 (2) of the Constitution, 1973. 10 Article 12 (1) No Law shall authorize the punishment of a person (a) for an act or omission that was not punishable by law at the time of act or omission; or (b)…. CIVIL PETITION NO.4570 OF 2019 11 22. Now, attending to second formulation as to the authority and jurisdiction of the Federal Ombudsman to grant relief to the complainant, it is the prerogative of the complainant, having encountered hostile act of misdemeanor, behavior, or conduct as defined under the Act, 2010 as ‘harassment’ either to make complaint against an accused person, who may be an employer or even an employee to, the Inquiry Committee, constituted under section 3 of the Act, 2010 or to the Ombudsman under Section 10 of the Act, 2010. The procedure and powers of the Inquiry Committee are provided for in section 4 and 5 of the Act, 2010 respectively. The Inquiry Committee on conclusion of the Inquiry may ‘recommend appropriate penalty against the accused within the meaning of sub-section (4) of section 411 to the Competent Authority’.12 However, where the Inquiry Committee finds the allegations in the complaint leveled against the accused to be false and made with malafide, they may recommend the complaint to the Ombudsman for appropriate action against the Complainant. Unsurprisingly, given the draconian structure of the law, no remedy under the Act, 2010 is provided to the complainant, against whom action may be recommended by the Inquiry Committee for action making false and malafide complaint. The remedy of appeal against the decision of Competent Authority is provided before the Federal Ombudsman in terms of section 6 (1) and (2) both to the accused who is inflicted penalty and to the Complainant who is aggrieved by any decision of the Competent Authority. 23. In case the complaint against actionable harassment is made directly to the Ombudsman, the procedure to carry out inquiry into complaint and the powers of the Ombudsman are given under Sections 8 and 10 respectively. None of the provisions of the Act, 2010 empowers the Federal Ombudsman to reinstate an aggrieved person back into service. Therefore, the decision of the President, as maintained through impugned judgment of the Islamabad High Court, reversing and setting aside the order and direction of the Federal Ombudsman to reinstate the petitioner is unexceptionable and calls for no interference. It may be observed that the scheme of the Act, the Federal Ombudsman has no jurisdiction to enquire into and give findings as regard to the disciplinary proceeding against an 11 Sub Section (2) of section 5 of the Act, 2010 12 Under sub section (4) of section 4 of the Act, 2010 CIVIL PETITION NO.4570 OF 2019 12 employee of the Organization, as disciplinary matter fell beyond the realm of the authority and jurisdiction of Federal Ombudsman under the Act, of 2010, and departmental proceeding and action taken thereunder may be agitated before the appropriate forum, may it be civil Court under its plenary jurisdiction, Writ Jurisdiction and or appropriate Service Tribunal depending on legal status of employee and employer as the case may be. 24. In view of the foregoing discussion, and under the facts and circumstances of the case, the order of the President as maintained through impugned judgment of the learned Islamabad High Court, is well reasoned, calls for no interference. Instant Petition is therefore dismissed. The research carried out by Syeda Saima Shabbir, Sr.R.O of the court in the instant matter is highly appreciated and acknowledged. Judge Judge Judge ANNOUNCED on_5.07.2021_at Islamabad. Judge “Approved for reporting”

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

{'id': 'C.P.L.A.45_2015.pdf', 'url': ''}

{'id': 'C.P.L.A.45_2015.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Faisal Arab Mr. Justice Qazi Muhammad Amin Ahmed Civil Petition No. 4635 of 2018 (On appeal from the judgment/order dated 14.11.2018 of the Peshawar High Court, Peshawar passed in W.P. No. 2688- P/2018). Hidayat Ullah Petitioner(s) Versus Mohammad Younas and others Respondent(s) For the Petitioner(s) : Dr. Babar Awan, Sr. ASC For the Respondents 1-4 Govt. of KPK For Federation : Syed Ishtiaq Haider, ASC Mr. Shumail Butt, AG KPK Mr. Aamir Rehman, Addl. AG Date of Hearing : 17.03.2020 ORDER UMAR ATA BANDIAL, J.— One Muhammad Shafique, Chairman of Coal Company Qasim Khel Zarghum Khel was murdered on 02.07.2014 in the jurisdiction of Police Station MRS Kohat which is a settled area. FIR No. 426 dated 02.07.2014 under Sections 302/324/392/427/34 PPC was registered at the aforesaid police station. The challan was put up before the learned ASJ-III Kohat who, after conducting Trial vide judgment dated 07.7.2018, convicted four accused persons and sentenced them to life imprisonment; one accused person was convicted and sentenced to four years imprisonment and proceedings under Section 512 Cr.P.C was undertaken against two accused persons and five accused C.P. NO. 4635 OF 2018 2 were acquitted. Appeals against the said conviction and sentence are pending before learned Appellate Court. 2. There was a civil controversy from the same occurrence but the cause of action in respect thereof arose in the tribal area of Frontier Region, Kohat. This dispute is between the Qasim Khel tribe from whose territory coal was being excavated by the company of which the deceased Muhammad Shafique was Chairman. 3. Compensation for the coal extracted from the tribal area was paid under the local nomenclature of Sersaya. Consequent upon the murder of its Chairman, the Coal Company stopped the payment of Sersaya to the Qasim Khel tribal whose members were accused of having committed the murder. In the said background, Qasim Khel tribal heads applied to the Assistant Political Agent, Kohat (“APA”) under Section 8 of the Frontier Crimes Regulation, 1901 (“FCR”). The complaint pertains to the cessation of payments of Sersaya to the tribe. On this issue the matter was referred by the APA to the Council of Elders which affirmed the entitlement of the tribe to the claimed payment of Sersaya. In addition, as a passing reference the Council of Elders also granted what appears to be a license to the Coal Company to avenge the killing of Muhammad Shafique against one of the accused persons. Under Section 8 of the FCR only civil disputes can be referred to the Council of Elders whose findings dated 16.12.2015 is a recommendation for the APA to pass a decree in accordance therewith. Accordingly, such a C.P. NO. 4635 OF 2018 3 decree was passed by the APA on 30.12.2015. The members of the Coal Company filed multiple appeals under Section 48 of the FCR against the decree issued by the APA. After hearing the appeals, the Commissioner passed a number of orders all dated 06.05.2016 disposing of the appeals but in one respect, it interfered with and impliedly set aside the decision of the APA. In the appeal bearing No. 181 of 2016 titled Fazal Raheem and others versus Hidayat Ullah and others, the Commissioner Kohat Division noted that the murder of Muhammad Shafique had taken place in a settled area in respect of which trial before the competent Court at Kohat was underway and, therefore, there was no need for further trial simultaneously before the APA. 4. Consequently, it was determined by the Commissioner that the obligation of the Coal Company to pay Sersaya was intact and enforceable. The members of the Coal Company went in revision petition before the FATA Appellate Tribunal under Section 55A of the FCR. That appeal was also dismissed on 02.10.2017. Their review petition was also dismissed on 24.4.2018. Thereafter, the members of the Coal Company who are respondents before us filed a writ petition in the High Court praying for the setting aside of all the decisions given by the different fora below under the FCR. A perusal of the writ petition reveals that the principal ground of challenge was against the criminal verdict/opinion expressed by the Jirga which was disputed as being outside the purview of law. The learned High Court has given the C.P. NO. 4635 OF 2018 4 impugned judgment dated 14.11.2018 which sets aside all the judgments of the FCR fora to hold that the criminal penalty of wreaking revenge upon the Qasim Khel tribesmen was set aside as being unlawful. Before us, the petitioner who is the member of the Qasim Khel tribe has urged that their right to Sersaya confirmed by all the fora under the FCR has been set aside by the impugned judgment without even discussing the entitlement to and necessity of such relief. Moreover, the writ petition filed by the respondents failed to challenge or give any grounds to interfere with the findings of all the FCR fora on Sersaya. 5. Learned Advocate General has supported those submissions with the added ground that the orders passed by the relevant fora under the FCR are all dated prior to the 25th Constitutional Amendment which came into effect on 31.5.2018. Thus, the recommendations of the Council of Elders dated 16.12.2015 until the decision of the review by the FATA Appellate Tribunal on 24.4.2018 predate the said Constitutional Amendment. Consequently, at the relevant time when the judgment was delivered the provisions of Article 247 (7) of the Constitution were in force. These constitutional provisions are to the following effect: “247 Administration of Tribal Areas.- (7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a Tribal Area, unless [Majlis-e-Shoora (Parliament)] by law otherwise provides: Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day.” C.P. NO. 4635 OF 2018 5 6. The ouster of jurisdiction of the High Court under Article 199 of the Constitution is specific for the reason that cause of action for the civil relief of such Sersaya as well as the residence of the parties and the locus of the corpus of the dispute, namely, the Coal mines are located within the Kohat Frontier Region. Consequently, the High Court had no jurisdiction to entertain the writ petition. Indeed this aspect of the case has not been considered by the impugned judgment at all. Moreover, insofar as the criminal laws advice suggested in the recommendations of the Jirga is concerned, the same has been disapproved and thereby excluded by the order of the Commissioner Kohat under Section 48 of the FCR vide his order dated 06.05.2016. Therefore, any reinforcement of that view was not necessary. In any case, the trial of the accused persons has been concluded on 07.7.2018 resulting in conviction and punishment to several accused. There was no reason for the learned High Court to resurrect the recommendation by the Council of Elders for fresh adjudication. 7. Learned counsel for the respondents is not in a position to dispute the applicability of Article 247 (7) of the Constitution to the facts of the case. Insofar as the civil relief of Sersaya is concerned, the respondents’ writ petition before the High Court in fact makes no specific grievance regarding Sersaya and only generally seeks to avoid the same through the prayer clause. Notwithstanding the fact that the impugned judgment fails to decide that issue, we consider C.P. NO. 4635 OF 2018 6 that consequent upon the conclusion of the proceedings before the FATA Appellate Tribunal the bar under Article 247 (7) is complete. No mala fide is urged by the respondents for the High Court to disregard the ouster directed in the aforenoted Constitutional provisions. 8. Furthermore, insofar as the criminal law advice recommended by the Council of Elders is concerned, the same is without jurisdiction under Section 8 read with Section 9 of the FCR. In any event, it has been impliedly set aside by the order of the Commissioner Kohat vide his order dated 06.05.2016. More importantly, once the matter has been dealt with and decided on merits by a competent Court of law, Article 13 of the Constitution does not allow the recommendation, even if, it has any validity to remain in existence. 9. In the circumstances, the impugned judgment of the High Court is set aside and this petition is converted into appeal and allowed. Judge Judge Judge Islamabad 17.03.2020 Naseer 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 Mr. Justice Sayyed Mazahar Ali Akbar Naqvi CIVIL PETITIONs NOs.467 & 468 OF 2021 & CIVIL PETITIONs NOs.80-Q & 81-Q OF 2021 (Against the order dated 16.12.2020 passed by the High Court of Balochistan at Quetta in C.P No.766, 811 of 2020) D.H.A. Quetta … Petitioner(s) Versus Quetta Residencia Housing Scheme, Quetta and others … Respondent(s) For the Petitioner(s): Mr. M. Makhdoom Ali Khan, Sr.ASC (in C.P.467,468/2021) Mr. Arbab M. Tahir, A.G. Balochistan Mr. M. Ayaz Swati, Addl. A.G. Balochistan For the Respondent(s): Mr. Naeem (Representative of Quetta Residencia) On Court’s notice: Ch. Aamir Rehman, Addl. A.G. for Pakistan Date of hearing: 16.03.2021. O R D E R Umar Ata Bandial, J. Submits that the impugned judgment dated 16.12.2020, wrongly presumes the Land Acquisition Act, 1894 (‘LAA 1894’) to be a Federal law and holds Section 6(b)(1) of the Defence Housing Authority Quetta Act, 2015 (‘Act’) which allows the petitioner to acquire land in accordance with the LAA,1894, to be violative of Article 142 of the Constitution of the Islamic Republic of Pakistan, 1973 (‘Constitution’). In fact both the Act and the LAA, 1894 are provincial laws and there is no CPs Nos.467, 468 of 2021 & CPs. 80-Q & 81-Q of 2021 2 encroachment by the Act into the Federal Legislative field. The impugned judgment also strikes down Section 6(b)(14) and Section 14(b) of the Act as these impose restrictions on owning and holding land that are violative of Articles 23 & 24 of the Constitution. This finding holds that restrictions with respect to a ‘Specified Area’ in the Act apply to land that is intended to be purchased, procured, acquired or leased by the petitioner. In other words, the restrictions govern such land in which the DHA has no legal interest as owner or lessee. On the other hand, Section 3(q) of the Act defines ‘Specified Area’ to mean land that is already purchased, acquired, leased or procured by the petitioner. The constraints placed on a Specified Area in terms of the Act relate only to such land in which the petitioner has a legal interest and not to land that belongs to a third party. Therefore, the impugned judgment has taken an erroneous view of law on this point. 2. On Court’s query, as to the purpose and effect of the constraints envisaged in the Act for land falling in a Specified Area, learned counsel for the petitioner has referred to Section 6(b)(14) and Section 14(b) of the Act. These provisions restrain a local authority or a private person from starting its own development scheme in a Specified Area without a NOC issued by the petitioner. This requirement is meant to ensure harmony between the development schemes prepared for land in a Specified Area by the petitioner on the one hand and by a local authority/private person on the other hand. In any event, he reiterates that this condition is imposed on land (in a Specified Area) which belongs to the petitioner. CPs Nos.467, 468 of 2021 & CPs. 80-Q & 81-Q of 2021 3 3. Learned counsel has finally submitted that the writ petition filed by respondent No.1 in C.P. No.468/2021 was in fact sought to be withdrawn by the respondent (writ petitioner) but permission to do so was declined by the learned High Court. That a writ petition is maintainable before a learned High Court under Article 199 of the Constitution at the instance of an aggrieved party. After the aggrieved petitioner party seeks withdrawal of his writ petition then any further proceedings therein are in the nature of suo motu proceedings. Relies upon Dr. Imran Khattak and another versus Ms. Sofia Waqar Khattak, PSO to Chief Justice and others (2014 SCMR 122) and Raja Muhammad Nadeem versus The State and another (PLD 2020 SC 282) to add that a High Court lacks jurisdiction to hold suo motu proceedings. Finally submits that the controversy decided by the learned High Court is academic in nature because no notification declaring a Specified Area has yet been notified under the Act. 4. The concerns expressed about the Act by the learned High Court may not have been precisely formulated, however, these do invite caution. How can an acquiring agency conduct acquisition proceedings for itself without indulging in conflict of interest? Also such a power is lacking in the sister organizations of the petitioner established in other urban areas of the country. In order to examine, inter alia, the aforesaid question and the validity of the points raised by the learned counsel, we grant leave to appeal. 5. In the meanwhile, the petitioner may develop its schemes in accordance with the provisions of the Act whilst ensuring that the petitioner exercises no power in relation to land that is outside the CPs Nos.467, 468 of 2021 & CPs. 80-Q & 81-Q of 2021 4 scope of a Specified Area as defined in Section 3(q) of the Act. Furthermore, the petitioner, whilst exercising powers under Section 6(b) and Section 14 of the Act shall adopt a cooperative approach in consulting with the concerned local authorities or provincial government for formulating its development schemes. The impugned judgment shall remain in abeyance for the exercise of powers to the above extent by the petitioner/authority. Judge Judge Judge Islamabad, the 16th March, 2021 Azmat + Irshad Hussain /* NOT APPROVED FOR REPORTING.

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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Qazi Muhammad Amin Ahmed C.P.No.4683 of 2018 [Against the judgment dated 22.10.2018, passed by the Federal Service Tribunal, Islamabad in Appeal No.64(R)CS/2017] Federation of Pakistan through its Secretary, Ministry of Law & Justice Division, Islamabad. …Petitioner(s) Versus Mamoon Ahmed Malik. …Respondent(s) For the Petitioner(s) : Mr. Sajid Ilyas Bhatti, Additional Attorney General Arshad Ali Siddique, S.O. Ministry of Law For the Respondent (s) : Ms. Shireen Imran, ASC Date of Hearing : 11.05.2020 O R D E R Gulzar Ahmed, CJ.— The respondent was employed as an Assistant (BPS-14) in the Law and Justice Division, Government of Pakistan on probation. During his probationary period, he remained absent from duty from 05.09.2011 to 02.04.2012, pursuant thereto, his service was terminated vide Office Order dated 02.04.2012. It is claimed by the respondent that against this order of termination, he filed a departmental appeal dated 13.04.2012, which he dispatched through courier service, receipt whereof is attached at Pages-35/36 of the record. 2. In the first place, we note that the very departmental appeal is addressed by the respondent directly to the Secretary, 3-C.P.No.4683 of 2018 - 2 - Law and Justice Division and not through proper channel. We also note that the courier receipt attached with the memo of appeal at Pages-35, seems to be fake, for that, as per letter dated 29.03.2016 of Manager Operation, PIA SpeedEx, Rawalpindi/Islamabad (available at Pages-36), the said receipt has no nexus whatsoever with the sending of the departmental appeal, rather it deals with some consignment sent through PIA SpeedEx by the Federal Investigation Agency from its corporate account and was delivered in Islamabad to one, Naseer, PSO Project NTS. This, in itself, shows that the respondent has conducted himself in a manner, which amounts to deception and he could have been proceeded against by this Court on that account. 3. Learned counsel for the respondent has contended that in the impugned office order, the leave period have been treated as an Extra Ordinary Leave (EOL) and thus, having done so, no further punishment could have been imposed upon the respondent. 4. We note that such an argument is not tenable in view of two unreported judgments of this Court, one dated 06.02.2020, passed in the case of NAB through its Chairman vs. Muhammad Shafique (Civil Appeal No.1618 of 2019) and other dated 10.02.2020, passed in the case of Kafyat Ullah Khan vs. Inspector- General of Police, Islamabad and another (Civil Appeal No.1661/2019). 5. The fact that the respondent remained absent from duty from 05.09.2011 to 02.04.2012, is not disputed rather an admitted fact. It is also admitted fact that the respondent was 3-C.P.No.4683 of 2018 - 3 - employed as a probationer. We have also looked at the office order of the termination of service of the respondent, which shows that it is a case of termination simplicitor, with no allegation whatsoever mentioned therein. The Federal Service Tribunal, Islamabad (the Tribunal) in the impugned judgment, has though found the respondent to have remained absent from duty, but merely on the point that his absence period has been treated as an EOL and further, no regular enquiry was conducted, set aside the office order dated 02.04.2012 and the respondent was directed to be reinstated in service. 6. So for the question of EOL is concerned, we have already noted two judgments of this Court and as regards the issue of regular enquiry, there being no dispute about the fact of respondent remaining absent from duty, no question arose for holding of a regular enquiry, for that, the enquiry is held only when there are disputed facts. 7. In view of the above, we find that the impugned judgment of the Tribunal suffers from legal infirmity and is not sustainable in law. The same is liable to be set aside. Consequently, this petition is converted into an appeal and allowed. The impugned judgment of the Tribunal dated 22.10.2018 is set aside and the Officer Order dated 02.04.2012, terminating the service of the respondent is restored. CHIEF JUSTICE Bench-I ISLAMABAD 11.05.2020 NOT APPROVED FOR REPORTING Rabbani*/ JUDGE 3-C.P.No.4683 of 2018 - 4 -

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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.4690 OF 2018 (Against the judgment of the Peshawar High Court, Mingora Bench (Dar ul Qaza) Swat dated 17.10.2018 passed in Writ Petition No.319- M/2018). Muhammad Jamil & others … Petitioners Versus Mst. Sajida Bibi & others … Respondents For the Petitioners : Raja Ghazanfar Ali Khan, ASC Syed Rifaqat Hussain Shah AOR For the Respondents : NR Date of Hearing : 12.08.2020 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J:- The instant civil petition has assailed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 seeking leave to appeal against the judgement dated 17.10.2018 passed by learned Single Judge of Peshawar High Court in writ petition No.319-M/2018 with a prayer to set aside the same in the interest of justice. 2. Brief facts leading to file the instant petition are that respondent No.1 alongwith minors filed a family suit against the petitioners for recovery of dower in shape of 05 tolas of gold ornaments, 03 tolas gold ornaments as personal ownership of respondent No.1 or its market value, maintenance @ Rs.6000/- per month since November 2013 till disposal of the suit and afterwards with 30% increase per annum for respondent No.1, maintenance @ Rs.3000/- per months since November, 2013 till attaining age of majority plus 30% increase per annum each for Civil Petition No. 4690/2018 -: 2 :- petitioners No.2&3 and respondents No.2&3 (all minors) and recovery of dowry articles according to list annexed with plaint or market value thereof i.e. Rs.229500/-. Respondent No.1 also sought custody of petitioners No.2&3 till their attaining the age of majority. The suit was contested by petitioner No.1. He filed written statement with divergent stance. The learned trial court framed issues on the basis of pleadings of both parties and thereafter the evidence of the parties was recorded. Thereafter the learned trial court vide judgment and decree dated 16.09.2015 partially decreed the suit to the extent of 05 tolas dower and maintenance @ Rs.1000/- per months each for respondents No.2&3 since November 2013 with 25% increase per annum during the period they reside outside the house of petitioner No.1. The plea of petitioner No.1 for restitution of conjugal rights was decreed in his favour. Being aggrieved, both the parties preferred separate appeals before appellate court who vide consolidated judgment and decree dated 09.06.2016 set aside the decree of the family court and remanded the case with the direction to record findings on issue No.07 relating to custody of the minors. Upon which learned family court decided the suit afresh vide judgment and decree dated 22.02.2017 by giving following findings: - “In view of the facts and circumstances narrated above, suit of the plaintiffs, to the extent of five tolas gold dower of plaintiff No.1 and maintenance amount for plaintiffs No.4&5 as Rs.1000/- with 25% per annum increase from November, 2013 till maturity or their marriages, whichever happens earlier, is decreed, while rest of the suit is dismissed.” In second round of litigation, both the parties approached to appellate court who vide consolidated judgment and decree dated 23.09.2017 partially allowed the appeal of respondent No.1 and modified the judgment and decree of learned family court. Civil Petition No. 4690/2018 -: 3 :- It is pertinent to mention here that respondent No.1 also filed another suit on the ground that the petitioner No.1 has contracted second marriage without seeking permission from her, hence, she filed suit for dissolution of marriage on 10.02.2017 which was decreed in her favour vide judgment dated 25.01.2018. Feeling dissatisfied from the impugned judgment dated 23.09.2019, passed by Additional District Judge, the petitioner filed constitutional petition before learned High Court Peshawar. The learned Single Bench after taking into consideration facts and circumstances dismissed the constitution petition in limine, however, the judgment of the appellate court was modified to the extent of payment of maintenance till the expiry of period of “Iddat”. 3. At the very outset, learned counsel for the petitioner argued the matter half-heartedly. The main stay of the arguments advanced by learned counsel for petitioner No.1 is that the recovery of dower is against the facts and prevailing law. Further contends that Mst. Sajida Bibi, the Ex-wife of the petitioner is not entitled to maintenance allowance when the petitioner No.1 has been granted decree for restitution of conjugal rights. Lastly, it is argued that judgments and decree passed by the learned courts below are liable to be set aside. 4. We have heard the learned counsel for the petitioner and gone through the record. There is no denial to this fact that the petitioner No.1 has contracted second marriage during subsistence of his marriage with Mst. Sajida Bibi (respondent No.1) without her permission or from Arbitration Council and section 6 of the Muslim Family Laws Ordinance, 1961 prohibits contracting second marriage without previous permission in Civil Petition No. 4690/2018 -: 4 :- writing of the Arbitration Council. The respondent No.1 filed suit for recovery of dower, dowry articles, gold ornaments and maintenance whereas the petitioner No.1 in his written statement prayed for restitution of conjugal rights as counter claim and the claim of the petitioner No.1 for restitution of conjugal rights was decreed whereas the suit filed by the respondent No.1 was partially decreed to the extent of five Tolas of gold as dower of respondent No.1 and maintenance amount for respondents No. 2 & 3 as Rs.1000/- with 25% per annum increase from November, 2013 till maturity or their marriage which ever happens earlier and rest of the claim was dismissed. It is pertinent to mention here that the respondent No.1 afterwards filed a suit for dissolution of marriage which was decreed in her favour vide judgment and decree dated 25.01.2018 by the learned Judge Family Court. As the petitioner No.1 has contracted second marriage without the permission of his first wife i.e. respondent No.1 and Arbitration Council, therefore, as per section 6(5)(a) of Muslim Family Law Ordinance, 1961, the dower becomes immediately payable. It would be advantageous to reproduce said section:- Polygamy: (1)……. (2)……. (3)……. (4)……. (5) Any man who contracts another marriage without the permission of the Arbitration Council shall:- (a) Pay immediate the entire amount of dower whether prompt or deferred, due to the existing wife or wives which amount, if not so paid shall be recoverable as arrears of land revenue; and (b)…… It is now abundantly clear that the entire amount of dower fixed at the time of marriage whether prompt or deferred is immediately payable on account of second marriage. The petitioner No.1 by entering into second Civil Petition No. 4690/2018 -: 5 :- marriage without seeking prior permission either from the existing wife i.e. respondent No.1 or the Arbitration Council, the dower even if it is termed as deferred or prompt has become payable without any delay. Otherwise the provision of section 6 of the Muslim Family Law Ordinance, 1961 is in consonance with the injunctions of Islam. The said provisions has not placed any restriction to contract second marriage, rather it only relates to seeking permission before entering into second marriage in order to regulate the structure of society as a whole. Any deviation from the provision of section 6 of Muslim Family Law Ordinance, 1961, it might ensue number of issues which would frustrate the fabric of relationship within society, therefore, the judgment of the learned Single Bench of Peshawar High Court for immediate payment of dower (5 Tolas of gold) is quite in accordance with law. So far as recovery of maintenance allowance is concerned, learned counsel for the petitioner has failed to point out any good reason qualifying interference into the judgment impugned before us. The learned High Court has rightly declined the prayer; hence, no other exception is called for. As a consequence, this petition is dismissed. Leave to appeal is declined. Judge Judge Islamabad, 12.08.2020 Not approved for reporting. Athar

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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed Mr. Justice Yahya Afridi Civil Petition Nos.4719, 4752-4759, 4791-4795 of 2017 [on appeal against Order dated 17.10.2017 passed by the Lahore High Court, Rawalpindi Bench in Writ Petitions No.2803 to 2806 & 3000 to 3002 of 2014 and 303 to 309 of 2015] Phoenix Security (Pvt) Limited [in all cases] …Petitioner(s) VERSUS Pir Muhammad & others [in CP.4719&4759] Nabi Ahmed & others [in CP.4752] Muhammad Arif & sons [in CP.4753&4793] Muhammad Abdullah & others [in CP.4754&4791] Noor Khan & others [in CP.4755&4794] Muhammad Afzal & others [in CP.4756&4795] Nabi Ahmed & others [in CP.4757] Amjad Hussain & others [in CP.4758&4792] …Respondent(s) For the Petitioner(s) [in all cases] : Mr. Shahid Anwar Bajwa, ASC For Respondent No.1 (in all cases) : Mr. Abdul Rehman Qadir, ASC Kh. Muhammad Arif, ASC Mr. Muhammad Sharif Janjua, AOR Date of Hearing : 30.04.2019 JUDGMENT GULZAR AHMED, J.— By these Civil Petitions for leave to appeal, the petitioner-Phoenix Security (Private) Limited has challenged the order dated 17.10.2017, passed by the learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench by which the writ petitions filed by the petitioner were dismissed, while writ petitions filed by the private respondents were allowed 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 2 - by setting aside the judgment of the Punjab Labour Appellate Tribunal dated 18.09.2014 and restoring/maintaining the decision of the Labour Court dated 14.09.2012. 2. The facts of the matter are that the private respondents (the respondents) were employed by the petitioner as Security Guards. They all retired on attaining the age of superannuation. The dispute arose between the petitioner and the respondents regarding final settlement of their dues pursuant to which the respondents filed their respective application under Section 15 of the Payment of Wages Act, 1936, before the Authority under the said Act, wherein they claimed various dues as unpaid wages. These applications were contested by the petitioner before the Authority. The evidence was recorded and ultimately vide order dated 13.02.2012, the Authority allowed the claims of the respondents for unpaid wages. The petitioner filed appeal against this order of the Authority before the Labour Court , which after hearing the appeal vide its judgment dated 14.09.2012 modified the order of the Authority and decreased the amount of unpaid wages payable to the respondents. Not being content, the petitioner filed revision petitions before the Punjab Labour Appellate Tribunal (Appellate Tribunal). The said revision petitions were heard and thereafter the Appellate Tribunal passed the judgment dated 18.09.2014, whereby further relief was granted to the petitioner and the amount of unpaid wages payable to the respondents was further reduced. Against this judgment of the Appellate Tribunal both the petitioner as well as the respondents filed writ petitions before the Lahore High Court, Rawalpindi Bench. All the 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 3 - aforementioned writ petitions were heard and decided by the impugned order dated 17.10.2017, passed by the learned Single Judge by which as noted above the writ petitions filed by the petitioner were dismissed while the writ petitions filed by the respondents were allowed by maintaining the judgment of the Labour Court. 3. We have heard the arguments of the learned counsel for the parties at substantial length and have also gone through the record of the case with their assistance. We have also gone through the case law relied upon by both the learned counsel for the parties. 4. It may be noted that while the Authority under the Payment of Wages Act has determined a number of claims of the respondents as unpaid wages and found them to be payable by the petitioner to the respondents, but before us learned counsel for both the parties conceded that except for two items of respondents’ claim, all other claims of the respondents towards unpaid wages stand resolved as the petitioner has paid such unpaid wages and even the amount of Rs.25,000/- as additional compensation has also been paid to the respondents. The two items that were agitated before us and on which decision was sought by the learned counsel for the parties is with regard to payment of wages for weekly holidays and also for overtime. The claim of the respondents is that they have been paid wages for weekly holidays and also overtime but not at double the rate of wages, which is provided in the West Pakistan Shops & Establishments Ordinance, 1969 (Ordinance, 1969). 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 4 - 5. Learned counsel for the petitioner at the very outset contended that the petitioner is a commercial establishment, where it employs 20 or more workmen and the service benefits to be paid to its workmen are those which are provided in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ordinance, 1968) and such service benefits are being paid under this Ordinance to its workmen. He also contended that the Ordinance of 1968 does not contain any provision for requiring payment of wages for weekly holidays nor does it contain any provision requiring payment of overtime. He further contends that both the items i.e. ‘weekly holidays’ and ‘overtime’ being not provided in the Ordinance, 1968, thus the rate of wages payable for weekly holidays and overtime is also not provided in the Ordinance of 1968. He also contended that the very term wages has not been defined in the Ordinance, 1968. However, the rates of wages in terms of Standing Order 5 of the Schedule to the Ordinance of 1968 were duly specified and respondents never challenged such rates of wages so specified until their retirement on attaining the age of superannuation. He further contended that the respondents have based their claim in terms of the Ordinance of 1969, which Ordinance is not applicable to the respondents and for this he read before us the provision of Section 5(1) (ix) of the Ordinance, 1969. He contended that Section 5 of the Ordinance of 1969 lays down the list, which enumerates the establishments and persons to whom the Ordinance shall not apply and item (ix) ibid excludes persons employed as “watchman”. He contended that the respondents were admittedly employed as Security Guards and as 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 5 - Security Guards they were doing the work of a watchman and thus were excluded from the application of the Ordinance of 1969. In support of his submissions learned counsel for the petitioner has relied upon the case of Zain Packaging Industries Limited, Karachi vs. Abdul Rashid and 2 others (1994 SCMR 2222). 6. On the other hand, learned counsel appearing for the respondents contended that the respondents were Security Guards and not watchmen and thus were not excluded from the application of the Ordinance, 1969. He further contended that for the payment of wages, the respondents were entitled to have their wages calculated, as per the term wages defined in the Payment of Wages Act, 1936 and the term ‘wages’ as defined therein includes payment of wages for ‘weekly holidays as well as ‘overtime’ wages and the rate applicable would be that as provided in the Ordinance, 1969. He also relied upon the Standing Order 8 of the schedule to the Ordinance of 1968, to contend that this Standing Order also provides for payment of wages for weekly holidays and also overtime wages at double the rate of wages. In support of his submission he has relied upon the cases of Aurangzaib vs. Medipak (Pvt.) Ltd. and others (2018 SCMR 2027), General Manager, Pakistan Railways and another vs. Anwar Ahmed Khan and others (1995 SCMR 810) and the General Newspaper Employees Union, Karachi vs. M/s General Newspaper (Private) Limited, Karachi (1993 PLC 428). Learned counsel for the respondents further argued that the very writ petitions filed by the petitioner before the High Court were not maintainable for that they were not verified and signed by the competent official i.e. 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 6 - General Manager (North). To this last submission of the learned counsel for the respondents, the learned counsel for the petitioner has contended that in the title of the writ petition the word General Manager (North) was erroneously mentioned but actually, the Company’s Resolution dated 17.05.2013 authorized Manager Administration and IR to file the writ petition and not the General Manager. He contended that the writ petition as also the affidavit in its support was signed by Mr. Mehboob Alam Siddiqui, who was the Manager Administration and IR and such has been specifically mentioned in the said affidavit. At the outset we have looked at this very aspect of the matter and have found that the Resolution authorizing filing of writ petition was in favour of Manager Administration and IR and in fact it was the Manager Administration and IR, who has signed the writ petition and also the affidavit in support of the said writ petition, thus this objection of the learned counsel for the respondents does not hold much weight and the same is answered in negative. 7. At the outset we may take up the point argued by the learned counsel for the petitioner that the very Ordinance of 1969 was not applicable to the respondents, who were employed as watchmen. In this regard it will be pertinent to mention here the provision of Section 5 (1)(ix) of the said Ordinance, which reads as follows: - “5. Ordinance not applicable to certain establishments and persons. (1) Nothing in this Ordinance shall apply to---- (i) ------------------------------------------------------------ (ii) ----------------------------------------------------------- 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 7 - (iii) ------------------------------------------------------------ (iv) ------------------------------------------------------------ (v) ----------------------------------------------------------- (vi) ------------------------------------------------------------ (vii) ------------------------------------------------------------ (viii) ------------------------------------------------------------ (ix) Any person employed as manager, travelling agent, canvasser, messenger, watchman, care-taker or conservancy staff or any person employed exclusively in connection with the collections, dispatch, delivery, and conveyance of, or custom formalities on goods.” [emphasis supplied] 8. The contention of the learned counsel for the petitioner is that person employed as watchman in fact performs the work of a Security Guard and in any case the term Security Guard and watchman are synonymous in that its meaning and work is one and the same. In order to understand such submission of the learned counsel for the petitioner, which obviously as noted above is disputed by the learned counsel for the respondents, we have examined the Ordinance of 1969 to find definition of the term ‘watchman’ but such definition is not available in the said Ordinance. No other definition of the word ‘watchman’ was referred to us by either of the counsel for the parties, which perhaps may be found in any of the labour laws. In the absence of the definition of term ‘watchman’ in the very Ordinance of 1969 and in any other law, to ascertain its meaning resort has to be made to the dictionary meaning and in this regard reference is made to the Black’s Law Dictionary, Sixth Edition, where the term ‘watchman’ has been given the following meaning: - “Watchman. One whose general duties consist of guarding, patrolling, and overseeing a building, group of building, or other property.” 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 8 - Furthermore the Oxford Advanced Learner’s Dictionary, New 8th Edition, has given the meaning of ‘watchman’ and it is as follows: - “Watchman. A man whose job is to guard a building, for example a bank, an office building or a factory, especially at night.” In the Oxford Thesaurus of English Third Edition, the word ‘watchman’ has been given the following meaning: - “Watchman. Security guard, security man, guard, custodian, doorman; caretaker, janitor, superintendant, warden, steward, curator.” 9. On reading of the above meanings given by the three dictionaries, the common feature of it is that it is defined by its nature of duties and in all three dictionaries the duty of watchman has been given that of guarding, patrolling and overseeing the building, group of buildings or other property or a man whose job is to guard a building, for example, a Bank, an office building or a factory, especially at night and in the Oxford Thesaurus of English Dictionary a ‘watchman’ has been given a meaning that of security guard, security man, guard, custodian, doorman, caretaker, janitor, superintendant, warden, steward, curator. Thus in all the three meanings given in the noted dictionaries the word ‘guard’ is common and in our view the term ‘watchman’ will include a security guard, as both the terms, watchman and security guard, are synonymous to each other and in the nature of their duties also. It is an admitted fact that respondents were employed as security guards and by the very nature of their duties they were working as a watchman, which term is synonymous to that of a 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 9 - security guard and by virtue of the expressed provision of Section 5(1)(ix) ibid, the respondents apparently stand excluded from the application of the Ordinance of 1969 and thus they cannot claim any benefit provided in the said Ordinance. 10. Learned counsel for the respondents has argued that the term wages, as defined in the Payment of Wages Act, 1936 (the Act of 1936), includes the wages payable for weekly holidays so also overtime wages at double the rate of wages. It will be advantageous here to reproduce the definition of term ‘Wages’ as given in the Act of 1936, which is as follows: - “(vi) “wages” means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed in respect of his employment or of work done in such employment and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include: (a) the value of any house-accommodation, supply of light, water, medical attendance or other amenity, or of any service excluded by general or special order of the Government (b) * * * * (c) any travelling allowance or the value of any travelling concession; (d) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or (e) * * * *” 11. The perusal of the definition of wages as given in the Act of 1936 apparently shows that it means all remuneration, capable of being expressed in terms of money, which would, if the 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 10 - terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon regular attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed in respect of his employment or of work done in such employment and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment. Although the definition of the term ‘wages’ as defined in the Act, is comprehensive and inclusive of all types of remuneration capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, is fulfilled, be payable to the employee. This will in our view include the wages for weekly holidays and also overtime wages but the difficulty which is apparent is that the Act does not provide the rate at which wages of weekly holidays or overtime have to be paid and for that the only thing referred to by this definition is that of a contract of employment. The respondents have not shown any contract of employment where provision may have been made for payment to them wages of weekly holidays and overtime wages at double the rate of wages. Earlier we have also noted that the employer is required to publish the rate of wages in term of Standing Order 5 of the Schedule to the Ordinance of 1968 and even the respondents have not been able to demonstrate or show to us that such publication of rate of wages provided for payment of weekly holidays and overtime wages at double the rate of wages. The respondents, as is apparent from the record, have performed work 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 11 - on weekly holidays and have also performed overtime work but in the very evidence they have admitted that they have been paid wages for these weekly holidays so also overtime wages. Even otherwise in the case of Zain Packaging Industries Limited (Supra) a three member bench of this Court while examining the term wages appearing in the Standing Order 12(6) of the Schedule to the Ordinance of 1968, has specifically held as follows: - “From the preceding discussion, it follows that 'wages' have been defined differently in various statutes relating to labour matters keeping in view the object of each legislation. Therefore, the definition of 'wages' given in one statute cannot be called in aid to interpret the provisions of another statute unless the two statutes are in pari materia or the legislature has expressly provided that the words and expressions defined in one statute shall have the same meaning in the other statute. The word ' wages' has not been defined in the Ordinance. The legislature has also not provided that the 'wages' will have the same meaning as defined in the Act. In these circumstances, the word 'wages' used in Standing Order 12(6) of the Ordinance could not be interpreted with the help of definition of 'wages' as given in the Act. The word 'wages' therefore, has to be interpreted according to its ordinary meaning. In its ordinary sense 'wages' would include all payments made to a workman by his employer on a regular and permanent basis periodically in lieu of his services. As a corollary, therefore, payments made to a workman which are contingent in nature would not form part of the 'wages'. Therefore, in order to determine whether a particular payment received by a workman is part of his wages, it is necessary to ascertain the nature of such payment. The fact that 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 12 - the payment made to a workman is described as an allowance of one kind or the other is not a determinative factor to make such payment or to exclude it from being treated as part of the 'wages'. If a workman is receiving certain payments on a permanent basis, regularly, not dependent upon any contingency or existence or otherwise of certain conditions, then notwithstanding the fact that such payment may be described as an allowance of some kind, will be treated as part of his wages. However, if it can be shown that certain payments made to a workman are dependent on existence of certain contingency or conditions and such payments could be discontinued when the contingency or the condition disappear, the payment cannot be treated as part of the 'wages' of the workman. Therefore, the question whether a particular payment to the workman is part of his wages' or not is to be decided with reference to the facts and evidence in each case.’ Thus, the very definition of the term wages, as given in the Act of 1936 in terms of the judgment as noted above, could not be taken into consideration while dealing with the payment of wages to the employees working under the Ordinance of 1968. 12. Learned counsel for the respondents has heavily relied upon the provision of Standing Order 8 of the Schedule to the Ordinance of 1968 to contend that under this provision also the respondents are entitled to payment of wages for weekly holidays and overtime wages at double the rate of wages and in this regard has made reference to the cases of Aurangzaib (supra), Anwar Ahmed Khan (supra) and the General Newspaper Employees Union, Karachi (supra), but incidentally none of the cited judgments deal 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 13 - with the question that has been raised by the learned counsel for the respondents before us. However, in order to fully appreciate the argument of the learned counsel for the respondents, the provision of Standing Order 8 of the Schedule to the Ordinance of 1968 is reproduced below: - “8. Leave.—(1) Holidays and leave with pay shall be allowed as hereinafter specified: - (a) annual holidays, festival holidays casual leave and sick leave as provided for in Chapter IVA of the Factories Act, 1934 (XXV of 1934); and (b) other holidays in accordance with the law, contract, custom and usage. 2. ……………………………..” 13. The Standing Order 8(1) ibid, as has been reproduced above, deals with the subject of leave and it provides that holidays and leave with pay shall be allowed as specified therein i.e. annual holidays, festival holidays, casual leave and sick leave as provided in Chapter IVA of the Factories Act, 1934 (the factories Act) and other holidays in accordance with law, contract, custom and usage. So for as the first item dealt with by Standing Order 8 ibid is concerned, it is in respect of annual holidays, festival holidays, causal leave and sick leave, as is provided in Chapter IVA of the Factories Act. As reference to Chapter IVA of the Factories Act has been made, we have gone through such Chapter and for ease of reference it is reproduced as follows: “Chapter IV-A - Holiday with Pay 49-A. Application of Chapter. - (1) The provisions of this Chapter shall not apply to a seasonal factory. (2) The provisions of this Chapter shall not operate to the prejudice of any rights to which a worker may 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 14 - be entitled under any other enactment, or under the terms of any award, agreement or contract of service. 49-B. Annual holidays. - (1) Every worker who has completed a period of twelve months continuous service in a factory shall be allowed, during the subsequent period of twelve months holidays for a period of fourteen consecutive days, inclusive of the day or days, if any, on which he is entitled to a holiday under sub-section (1) of section 35. (2) If a worker fails in any one such period of twelve months to take the whole of the holidays allowed to him under sub-section (1), any holidays not taken by him shall be added to the holidays to be allowed to him under sub-section (1) in the succeeding period of twelve months, so however that the total number of holidays which may be carried forward to a succeeding period shall not exceed fourteen. (3) If a worker entitled to holidays under sub- section (1) is discharged by his employer before he has been allowed the holidays, or if, having applied for and having been refused the holidays, he quits his employment before he has been allowed the holidays, the employer shall pay him the amount payable under section 49-C in respect of the holidays. Explanation. - A worker shall be deemed to have completed a period of twelve months continuous service in a factory notwithstanding any interruption in service during those twelve months brought about by sickness, accident or authorised leave not exceeding ninety days in the aggregate for all three, or by a lock-out, or by a strike which is not an illegal strike, or by intermittent periods of involuntary unemployment not exceeding thirty days in the aggregate; and authorised leave shall be deemed not to include any weekly holiday allowed under section 35 which occurs at beginning or end of an interruption brought about by the leave. 49-C. Pay during annual holiday. - Without prejudice to the conditions governing the day or days, if any, on which the worker is entitled to a holiday under sub- section (1) of section 35, the worker shall, for the remaining days of the holidays allowed to him under section 49-B, be paid at a rate equivalent to the daily average of his wages as defined in the Payment of Wages Act, 1936 (IV of 1936), for the days on which he actually worked during the preceding three months, exclusive of any earning in respect of overtime. 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 15 - 49-D. Payment when to be made. - A worker who has been allowed holidays under section 49-B shall, before his holidays begin, be paid half the total pay due for the period of holidays. 49-E. Power of Inspector to act for worker. - Any Inspector may institute proceedings on behalf of any worker to recover any sum required to be paid under this Chapter by an employer which the employer has not paid. 49-F. Power to make rules. - (1) The Provincial Government may make rules to carry into effect the provisions of this Chapter. (2) Without prejudice to the generality of the foregoing power, rules may be made under this section prescribing the keeping by employers of registers showing such particulars as may be prescribed and requiring such registers to be made available for examination by Inspectors. 49-G. Exemption of factories from the provisions of this Chapter. – Where the Provincial Government is satisfied that the leave rules applicable to workers in a factory provide benefits substantially similar to those for which this Chapter makes provision, it may, by written order exempt the factory from the provisions of this Chapter. 49-H. Casual leave and sick leave. - (1) Every worker shall be entitled to casual leave with full pay for ten days in a year. (2) Every worker shall be entitled to sixteen days sick leave on half average pay in a year. 49-I. Festival Holidays. - (1) Every worker shall be allowed holidays with pay on all days declared by the Provincial Government to be festival holidays. (2) A worker may be required to work on any festival holiday but one day's additional compensatory holiday with full pay and a substitute holiday shall be allowed to him in accordance with the provisions of section 35.” This Chapter IVA in Section 49B deals with annual holidays, in Section 49C deals with pay during annual holidays, in Section 49D 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 16 - deals with payment when to be made, in Section 49E empowers Inspector to act for worker, Section 49F gives powers to the Government to make rules, Section 49G provides for exemption of factories from the provisions of this Chapter, Section 49H deals with causal leave, sick leave and Section 49I deals with festival holidays. Nowhere, in this Chapter, there is a provision for making payment of wages of weekly holidays or that of overtime, as it concerns itself only to the annual holidays, casual leave, sick leave and festival holidays. The second item, i.e. clause (b) of Standing Order 8(1) ibid, provides other holidays in accordance with law, contract, custom and usage. In the evidence available on the record it is clear that the respondents were entitled to payment of wages for weekly holidays so also overtime wages in that such an assertion has been made by the respondents in their evidence and they have also stated that they have been paid wages by the petitioner for the work performed by them on weekly holidays and also they have been paid overtime wages. This assertion of the respondents in their evidence, in our view, could be considered as a contract between the petitioner and respondents or a custom and usage where the petitioner has been obtaining from the respondents work on weekly holidays and have also been paying to the respondents wages for the weekly holidays and similarly the petitioner has been obtaining from the respondents overtime work and at the same time has been paying wages to the respondents for such overtime. The respondents, however, in their evidence have not stated anywhere that there was a contract between the petitioner and respondents or there was a custom or usage of 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 17 - paying double the rate of wages by the petitioner to the respondents for working on weekly holidays or for overtime. The respondents have, through their evidence, succeeded in establishing the fact of payment to them of wages by the petitioner for weekly holidays so also for overtime but at nowhere they have been able to establish the factum of the rate at which such wages were paid to them by the petitioner except the one which was actually paid by the petitioner to the respondents. Thus, apparently there seems to be no non-compliance of the petitioner of Standing Order 8(1)(b) of the Schedule to the Ordinance of 1968 for that wages for weekly holidays and overtime were paid by the petitioner to the respondents and they have accepted such payment without raising any objection while in service. No law apart from the Ordinance of 1969 was relied upon by the learned counsel for the respondents for calculation of double the rate of wages and it has already been noted above that the Ordinance of 1969 is not applicable to the respondents as they stand specifically excluded from its application and thus any benefit extended by the Ordinance of 1969, the petitioner in law will not be liable to pay the same to the respondents. No contract, custom or usage was either pleaded or asserted in the evidence by the respondents nor was any such thing shown to us by the learned counsel for the respondents, except what is asserted by the respondents in their evidence is that they worked on weekly holidays and wages for that was paid to them and that they worked overtime and overtime wages were paid to them. The rate of wages of the weekly holidays and the rate of overtime wages that is double the rate of wages, 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 18 - was not established by the respondents in their evidence to be payable to them either by contract, custom or usage and thus in the absence of such evidence, we cannot assume that the petitioner was required to pay wages to the respondents for weekly holidays and overtime at double the rate of wages. For doing so, the respondents ought to have established this factum either through contract, custom or usage, and none of these three items were at all proved. We have noted that the rate of wages was required to be published by the petitioner in terms of Standing Order 5 of the Schedule to the Ordinance of 1968 and it is not the case of respondents that such wages were not published by the petitioner. The respondents by failing to produce such published rate of wages have not been able to establish that the rate so published contain in them the rate of wages for weekly holidays and overtime at double the rate of wages. In any case it is not the case of the respondents that they have not been paid wages as was published by the petitioner in terms of Standing Order 5 ibid. 14. From the over all discussion, as made above, it is amply established that the respondents have worked for weekly holidays and performed overtime work but at the same time they have been paid wages for both weekly holidays and overtime and that their case that they be paid double the rate of wages, the same apparently is not established on record nor the law provides for the same for that nothing was cited before us. Thus, the only conclusion we can reach is that the respondents were not entitled 9-C.P.Nos.4719, 4752-4759, 4791-4795 of 2017 - 19 - to claim wages for weekly holidays and overtime wages at double the rate of wages, as was claimed by them. 15. The two questions posed to us have been answered with the finding that the respondents are not entitled to payment of wages for weekly holidays and overtime at double the rate of wages, as claimed by them. Thus, the impugned order of the High Court to this extent is not sustainable. These petitions are, therefore, converted into appeals and are allowed to the extent that the impugned order of the High Court stands modified in that the respondents are not entitled to payment of wages for weekly holidays and overtime wages at double the rate of wages as claimed by them. JUDGE Bench-II ISLAMABAD APPROVED FOR REPORTING Rabbani*/ JUDGE Announced in open Court on 03.10.2019. JUDGE

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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed Mr. Justice Mushir Alam Civil Petition No.4725 of 2018 [Against the judgment dated 17.10.2018, passed by the Federal Service Tribunal, Islamabad in Appeal No.1647(R)CS/2016] Pakistan Aeronautical Complex through its Chairman, Kamra & others. …Petitioner (s) VERSUS Nazar ul Islam. …Respondent(s) For the Petitioner (s) : Mr. Khurram Saeed, Additional Attorney General Mr. M.S. Khattak, AOR Sqn. Ldr. Nadeem For the Respondent(s) : Mr. Muhammad Ramzan Khan, ASC Date of Hearing : 19.08.2019 J U D G M E N T GULZAR AHMED, J.— Through the instant petition the petitioners have challenged judgment dated 17.10.2018 of the Federal Service Tribunal, Islamabad (the Tribunal) by which the Service Appeal of the respondent was allowed. 2. Facts, in brief, are that the respondent had joined the petitioner i.e. Pakistan Aeronautical Complex, Kamra, as Assistant Foreman (BS-14) on 03.04.1994 and was promoted as Foreman (BS-16) on 30.05.1998. In the meantime, Pakistan Aeronautical 10-Civil Petition No.4725 of 2018 - 2 - Complex Board Ordinance, 2000 (the Ordinance of 2000), was promulgated. Section 7 with its clause (a) of the Ordinance of 2000, is as follows: "7. Investment of the Board with certain powers.--- Notwithstanding anything contained in any law, regulation, rule, order, notification, agreement or other instrument for the time being applicable to any factory, or any officer or other employee appointed or engaged in, or in connection with, any factory, the Board may, in relation to such factory, officer or employee, exercise the following powers of the Federal Government or of any officer authorized for the purpose by the Federal Government, namely:- (a) to determine the terms and conditions of service, recruitment, promotion, transfer, posting, dismissal, discharge, demotion and other disciplinary actions of all officers and other employees. Provided that the terms and conditions of service of any officer or other employee appointed or engaged before the commencement of this Ordinance shall not be varied to his disadvantage and that he shall not be dismissed or removed from service or reduced in rank by any authority subordinate to that by which he was appointed: Provided further that the officers or employees appointed before the commencement of this Ordinance shall be given an option, after the service rules for the officers and employees of the Board have been made, to opt for the new service rules or to continue to be governed by their existing service rules; but once the option has been exercised by an officer or employee within the time fixed by the Board, it shall be final, and an officer or employee who does not exercise the option within the prescribed time shall be considered to have opted for the new rules: Provided also that the promotion, demotion or other disciplinary action against an officer or employee on deputation or secondment shall be governed by the service rules applicable to him;” Pursuant to the Ordinance of 2000, PAC Board Employees (Service) Rules, 2002 (the Service Rules of 2002), were framed on 11.04.2005, which were published vide SRO No.312(1)/2005 on 14.04.2005. Rule 2(i) of the Service Rules of 2002, is as follows: " 2. Application.---These rules shall apply to all the employees in the whole time employment of the Board, working in PAC, other than:--- (i) the employees appointed before the commencement of Pakistan Aeronautical Complex Board Ordinance No.XXVIII of 2000, and opted to continue to be governed by the Civil Servants Act, 1973." 10-Civil Petition No.4725 of 2018 - 3 - Through Factory Routine Orders dated 07.09.2010, the petitioner extended an option to civilian employees under Section 7(a) of the Ordinance of 2000, in the following term: "Order No.7 Discipline – Extending the Option to Civilian Employees under section 7(a) of PAC Board Ordinance, 2000. 16. An option under Section 7(a) of PAC Board Ordinance is required immediately for the civilian officers and employees of MRF who are employed before the commencement of said Ordinance to opt for the new service rules i.e. PAC Board Employees (Service) Rules, 2002 or to be governed by their existing service rules i.e. Civil Servants Act, 1973.” Through letter dated 08.09.2010, it was notified as follows: "1. Reference is made to FRO’s No.187 Order No.7 dated 7 September, 2010. 2. It is requested that the civilian officers/employees who are employed before the commencement of PAC Board i.e. 20 July, 2000 working under your command may please be advised to submit their option by 15th September, 2010, to Civil Personnel Section. In case they do not exercise the option within the prescribed time, shall be considered to have opted for the new service rules.” Through further Factory Routine Orders dated 09.09.2010 the terminal date for submission of the option was again fixed to be 15.09.2010. Through the Standardization of Recruitment Rules for Appointment, Promotion and Transfer for PAC Employees at PAC Kamra (the Rules of 2012), published vide Gazette Notification dated 14.03.2012, the method, qualifications and other conditions were laid down for appointment, promotion and transfer to the posts in respect of Aircraft Rebuild Factory, Mirage Rebuild Factory, Avionics Production Factory, Avionics Production Factory JF-17, Aircraft Manufacturing Factory, Aircraft Manufacturing Factory JF-17 and PAC Hospital Pakistan Aeronautical Complex, Kamra. Rule 3 (Conditions for Promotion) of this notification provides that ‘as defined by the appointing authority, the promotion to posts in column 2 in BPS-11 & above shall be made by selection on merit subject to qualifying the Departmental Promotional Examination …’. 10-Civil Petition No.4725 of 2018 - 4 - On 16.12.2013, examinations for promotion from the posts of BS- 16 to that of BS-17 were held under the Rules of 2012, according to the criteria laid down therein. The respondent, who was working as FM appeared in this examination and obtained 73.8 marks while petitioner No.3, who was also working as FM obtained 91.6 marks. Pursuant to result of this examination, vide Office Order dated 25.03.2014, petitioner No.3 was promoted as Assistant Works Manager (Tech) in BS-17 against an existing establishment vacancy w.e.f. 09.01.2014. The respondent being aggrieved of the appointment order of petitioner No.3, filed a departmental representation which was not responded to, therefore, the respondent filed Service Appeal before the Tribunal and the same was contested by the petitioners by filing written statement. After hearing learned counsel for the parties, the impugned judgment was passed by the Tribunal allowing the Service Appeal of the respondent. 3. The learned Additional Attorney General for Pakistan has contended that the respondent was admittedly a Civilian employee of the Factory prior to the issuance of Ordinance of 2000, but as required by Section 7 (a) of the Ordinance of 2000 and the subsequent Office Orders dated 07.09.2010, 08.09.2010 and 09.09.2010, the respondent was required to opt for the new rules to be made under the Ordinance of 2000 or to continue to be governed by their existing service rules, within the time fixed by the Board. He contended that the time fixed by the Board was till 15.09.2010 and by this date the respondent had not submitted option and thus was deemed to be governed by the rules made 10-Civil Petition No.4725 of 2018 - 5 - under the Ordinance of 2000. He contended that the option letter dated 21.09.2010 filed by the respondent in the first place was out of time and secondly it was not available in the record of petitioner No.1, and thus, was a fake letter. He further contended that once the respondent had appeared in the examination for promotion from the post of BS-16 to that of BS-17 under the Rules of 2012 , he is estopped from alleging that he is not governed by the Ordinance of 2000. He has further contended that the respondent has been enjoying the allowances payable to the employees of the petitioner factory, as fixed by the Board in terms of the Ordinance of 2000. The learned Additional Attorney General has relied upon an unreported judgment of 3-Member Bench of this Court dated 03.05.2017 passed in C.P.No.350 of 2016 [Tahir Nadeem v. Chairman, Pakistan Aeronautical Complex Board, PAC Kamra & others]. 4. On the other hand, learned ASC for the respondent has contended that the respondent has exercised option in terms of the Office Orders and that there was extension in time for submission of option on account of Eid and thus the letter of option dated 21.09.2010 submitted by the respondent was within time and that the respondent’s service was to be governed by the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (the Rules of 1973), as per Notification published in the Gazette of Pakistan dated 15.03.1990. He has further contended that the promotion case of the respondent from BS-16 to that of BS-17 was required to be considered under the Rules of 1990 on the principal of seniority cum fitness and there was no need for the respondent 10-Civil Petition No.4725 of 2018 - 6 - to appear in the examination for the purpose of such promotion. As regard the allowances being drawn by the respondent, the learned ASC contended that it was the pay of the post of the respondent which is protected under the Ordinance of 2000. In this regard he has made reference to Section 17 of the Civil Servants Act, 1973. He has also relied upon judgment of the Tribunal dated 26.01.2016 passed in Appeal No.480(P)CS/2015 [Zafar Ali v. Chairman, PAC Board, Kamra & others]. 5. We have considered the submissions of the learned counsel for the parties and have gone through the record of the case. The admitted fact is that the respondent was employed with petitioner No.1, prior to the promulgation of the Ordinance of 2000. By virtue of Section 7(a) of the Ordinance of 2000, the respondent was required to give option of his terms and conditions of service being governed by new rules to be framed under the Ordinance of 2000 or by the Rules of 1973 and no such option was offered by the respondent, which option he was required to submit to the petitioner latest by 15.09.2010. It was also clarified in the Office Orders dated 08.09.2010 and 09.09.2010 that the option has to be submitted by 15.09.2010 and on not doing so, the employee will be considered to have opted for the new rules. The learned ASC for the respondent has contended that time for submission of option was extended owing to Eid but he was unable to show us from the record any Office Order of the petitioner or any document whereby such time was extended beyond 15.09.2010. The submission of option on 21.09.2010, as asserted by the respondent, could not be considered to be an option that 10-Civil Petition No.4725 of 2018 - 7 - was offered by the respondent in terms of the Ordinance of 2000. Thus, the respondent apparently was to be governed by the rules made under the Ordinance of 2000. The respondent in para 5 of the memo of appeal before the Tribunal has taken the following stand: " 5) That in the year 2012, Rule has been again amended by which the eligibility criteria of promotion to the post of Assistant Works Manager (Tech) BS-17 was changed and varied to his disadvantage. After exercise of his option, any subsequent change in criteria would only be applicable to the employee of the Board and not to the appellant being a civil servant. Hence the appellant is entitled for promotion in BS-17 on the basis of seniority cum fitness under the Civil Servants Act, 1973 rules, irrespective of test, interview or qualification/quantification introduced in Rules, 2012." 5. Though the learned ASC for the respondent has asserted that the Rules of 2012, by which the eligibility criteria for promotion to the post of Assistant Works Manager (Tech) BS-17 was changed and varied to his disadvantage, but the very Rules were not challenged by him in his Service Appeal, rather it was asserted that the respondent has to be governed by the Rules of 1973. Such assertion of the learned ASC for the respondent, apparently was not well founded for the reason that in the first place he has not given an option stating that he shall continue to be governed by the Rules of 1973 and secondly, he himself has participated in the departmental promotion examination, as prescribed by the Rules of 2012 and when he failed to obtain the highest marks, as required for promotion, he started raising grievance against the said Rules. Once the respondent appeared in the departmental promotion examination held under the Rules of 2012, it could not be asserted that he is not governed by the said Rules and that he was not required to obtain highest marks in the departmental promotion examination. The respondent cannot 10-Civil Petition No.4725 of 2018 - 8 - be allowed to blow hot and cold in the same breath. The very fact, as is apparent from the record, is that there was no option given by the respondent being governed by the Rules of 1973 and in the absence of such option, the whole case of the respondent falls to the ground; inasmuch as, he himself opted to appear in the departmental promotion examination held under the Rules of 2012 thus, conceding that he was governed by the Rules made under the Ordinance of 2000. The Tribunal has altogether failed to consider this aspect of the matter so also the applicable law while passing the impugned judgment. 6. As regard to the unreported case cited before us, a 3- Member Bench of this Court in para 5 of the said Judgment held as follows: "5. The promotion order, in this case, was passed in the year 2014. The Recruitment Rules pertaining to the Petitioner and the Respondent No.3 qua promotion were issued on 14.03.2012, which were obviously applicable at that point of time. In terms of the said Rules, promotion was determined on the basis of “seniority-cum- fitness” and “merit”. The Departmental Promotion Examination was conducted in which the Petitioner and Respondent No.3, inter alia, participated. The Petitioner thereby accepted the application of the said Rules. On the basis of the result of the said Examination and other relevant factors the Competent Authority found Respondent No.3 entitled to be promoted. As per the report of the Departmental Promotion Examination, the Petitioner secured less marks than the Respondent No.3 who has better educational qualification and better Annual Confidential Reports (ACRs). Then the promotion of Respondent No.3 in preference to the Petitioner appears to be on merit and in accordance with the rules." So far as the judgment of the Tribunal, relied upon by the learned ASC for the respondent is concerned, the same is distinguishable from the facts and circumstances of the case in hand. 7. In view of what has been discussed above, we are of the considered view that the impugned Judgment of the Tribunal is not sustainable in law and is liable to be set aside. 10-Civil Petition No.4725 of 2018 - 9 - 8. Above are the reasons of our short order of even date whereby this petition was converted into appeal and allowed by setting aside the impugned judgment dated 17.10.2018. JUDGE Bench-II ISLAMABAD 19.08.2019 APPROVED FOR REPORTING * * JUDGE

{'id': 'C.P.L.A.4725_2018.pdf', 'url': ''}

{'id': 'C.P.L.A.4725_2018.pdf', 'url': ''}

S •L \0 SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Uaz ul Ahsan Mr. Justice Munib Akhtar CIVIL PETITION NO.4740 OF 2017 [Against the judgment dated 23.10.2017, passed by the Peshawar High Court, Peshawar in W.P.No.524-P of 2016 with CMs No. 1023- P of 2016 & No.425-P of 2017] Mian Hikmatullah Jan son of Mian Abdul Wahid, resident of Tanijabba District Nowshera. . . . Petitioner(s) Versus Chairman and Members of Selection Board Constituted for Selection and Interview for the Post of Additional District and Sessions Judges for District Subordinate Judiciary Khyber Pakhtunkhwa, Peshawar High Court, Peshawar and another. Respondent(s) For the Petitioner(s) Mr. Ghulam Mohy-ud-Din Malik, ASC (via video link from Peshawar) Respondent(s) N. R. Date of Hearing 22.12.2021 JUDGMENT GULZAR AHMED, CJ.- The Peshawar High Court, Peshawar (the High Court) had invited applications for the post of Additional and District Sessions Judges. The petitioner applied for the said post and appeared in the written examination, which the petitioner claimed to have been qualified. The interview was scheduled and the petitioner was also called for the interview but subsequently, the petitioner i CP.4740 of 2017 -2- was not interviewed rather his documents were sent to the Khyber Pakhtunkhwa Provincial Bar Council for verification. Pursuant thereto, it was found that the petitioner's name has; been struck off from the Roll of the Advocates vide Khyber• Pakhtunkhwa Bar Council order dated 24.08.2013. Then petitioner was, thus, disqualified from being appointed to the Post of Additional District and Sessions Judge. The petitioner filed a writ petition in the High Court with a prayer that he may be allowed to appear in the interview and may be considered for the post of Additional District and Sessions Judge on merit. By the impugned judgment dated 23.10.2017, the writ petition of the petitioner was dismissed. 2. The learned counsel for the petitioner has contended that the petitioner was not disqualified as his license has merely been suspended by the Khyber Pakhtunkhwa Bar Council and further the High Court was not justified in seeking verification of his Wakalat Na,nas. 3. The learned counsel for the petitioner was asked to show the order of the Khyber Pakhtunkhwa Bar Council showing that the license of the petitioner has been suspended. The learned counsel referred to page 73 of the paper book which contains the reasons for disqualification made by the High Court and at Serial No.10 appears the name of the petitioner where it is noted that his membership remained suspended from July, 2013 to 29.01.2016 and has submitted Wakalat Namas for the same period and so disqualified. CR4740 of 2017 4. We note from the document appearing at page 74 of the paper book, which is a letter of Khyber Pakhtunkhwa Bar; Council, wherein it is specifically mentioned that the petitioner's name was struck off from the Roll as per executive order dated 24.08.2013. The learned counsel for the petitioner did not refer. to this document, which is available in the paper-book. The name of the advocate being struck off from the Roll of the Advocates, apparently, means that he is no more practicing advocate under the Legal Practitioners and Bar Councils Act, 1973, and cannot claim himself to be a practicing advocate. 5. The very advertisement for appointment to the post of Additional District and Sessions Judges specifically require the candidate to be a practicing advocate, which condition was not fulfilled by the petitioner. The High Court in the impugned judgment has addressed this very aspect of the matter and found that the petitioner was not a practicing advocate when he I applied for being appointed as an Additional District and Sessions Judge. M 6. So far the argument of the learned counsel for the petitioner regarding Wakalat J'Tamas, we note that in the face of the fact that the petitioner was not a practicing advocate at the time when he applied for being appointed to the post of Additional District and Sessions Judge, thus, was not eligible for being appointed. The question of petitioner continuing practice and filing his Wakalat Namas even after his name had been struck off from the roll of the advocates, is a matter which is to be attended to by the Khyber Pakhtunkhwa Bar Council -r I ii I CR4710 of 2017 and the Khyber Palchtunkhwa Bar Council should take notice off , such fact and take action as per the law. 7. No illegality in the impugned judgment is Pointedij out calling for interference by this Court. The petition therefore, dismissed and leave refused 8. Let a copy of this judgment order be sent to the Vice!( Chairman Khyber Pakhtunkhwa Bar Council for dealing with it accordingly. Bench-I Islamabad 22. 12.2021 010R1l)oI?IIN(;

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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. 47 OF 2016 & C.M.A. NO. 5424 OF 2016 (On appeal against the judgment dated 04.11.2015 passed by the High Court of Sindh, Karachi in CP No. D-3065/2015) 1. Salman Abro (In CP 47/2016) 2. Application for impleadment by Zeeshan Mustafa Lashari (In CMA 5424/2016) … Petitioner/Applicant VERSUS Government of Sindh and others (In CP 47/2016) … Respondents For the Petitioner: Mr. Ghulam Sarwar Abro, father of the petitioner For the State: Mr. Zafar Ahmed Khan, Addl. P.G. Sindh For the Respondents (2): Mr. Faisal Siddiqui, ASC (Also for applicant in CMA No. 5424/2016) Date of Hearing: 09.02.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Civil Petition No. 47/2016 Through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the judgment of the High Court of Sindh, Karachi whereby the Constitutional Petition filed by him was dismissed and the order of the learned Trial Court dated 29.04.2015 dismissing his private complaint under Section 203 Cr.P.C. was upheld. 2. Briefly stated the facts of the matter are that the petitioner is facing trial in case registered vide FIR No. 235/2014 under Sections 302, 324, 427, 34 PPC read with Section 7 of the Anti Terrorism Act, at Police Station Darakshan, Karachi, for the alleged murder of one Suleman Mustafa Lashari. According to the FIR, on the fateful day and time, the complainant was sitting in his house when petitioner along with others while armed with firearms came at the gate of their Civil Petition No. 279-P/2015 2 bungalow and started firing. Due to the firing, their guard namely Ghulam Ali Bugti and his brother Suleman Mustafa Lashari sustained injuries. The complainant party while exercising right of self defence fired at the assailant due to which petitioner also received injuries. The brother of the complainant Suleman Mustafa and his guard were evacuated to hospital but his brother succumbed to the injuries. Later it was found that one of the assailants also lost his life during the occurrence. The motive behind the occurrence was that the petitioner and the deceased had some hostility during their friendship, which persuaded the petitioner to launch attack resulting into death of the deceased. After registration of the aforesaid crime report, one Mansoor Ali filed an application under Section 22-A & 22-B Cr.P.C before the Justice of Peace, Karachi South for registration of counter version, but the same was dismissed vide order dated 10.05.2014. He assailed the order of Justice of Peace before the High Court of Sindh by filing Criminal Misc. Application No. 59/2014, which also met the same fate vide order dated 03.09.2014. The order of the High Court was challenged before this Court through Criminal Petition No. 101-K/2014, which was ultimately withdrawn and the same was disposed of accordingly vide order dated 06.02.2015. It is strange enough that in the second round of litigation, the petitioner Salman Abro filed private complaint under Section 200 Cr.P.C before the learned Trial Court for recording of counter version under Sections 302, 324, 427, 201, 149 PPC read with Sections 6/7 of the Anti Terrorism Act. The learned Trial Court after recording the preliminary statements and while inquiring into the matter dismissed the private complaint vide order dated 29.04.2015 on the ground that there does not exist any reasonable ground for issuance of process against the proposed accused in the complaint lodged by the petitioner. Being dissatisfied with the order of the learned Trial Court, the petitioner filed Constitutional Petition No. D- 3065/2015 before the learned High Court of Sindh, Karachi, but it has been dismissed vide impugned judgment dated 04.11.2015. Hence, this petition seeking leave to appeal. 3. Learned counsel for the petitioner is not in attendance. According to the father of the petitioner, learned counsel is indisposed. We have noticed that on the last two dates of hearing, the learned counsel for the petitioner had sent applications for adjournment on different grounds. Since, a short point is involved and as the matter is Civil Petition No. 279-P/2015 3 lingering on since 2016, we have decided to proceed with the matter on merits. Mr. Ghulam Sarwar, father of the petitioner, inter alia, contended that one of his guards has been killed by the complainant party of the FIR and his son i.e. the petitioner has received serious injuries, which clearly shows that the complainant party was the aggressor but the learned courts below have not taken this aspect of the matter into consideration and refused to register the counter version of the petitioner’s side, which resulted into grave miscarriage of justice; that the petitioner had fired in self defence due to which deceased Suleman Mustafa lost his life. He lastly contended that the complainant party is not appearing before the Trial Court and deliberately delaying the matter. 4. On the other hand, learned Law Officer and learned counsel for the respondent No. 2 have defended the impugned judgment. Learned counsel for the respondent No. 2 has inter alia contended that the matter is at the stage of final arguments; that the plea of petitioner for registering his counter version was also declined in the earlier round of litigation, which means it had attained finality, therefore, seeking the same relief in the second round amounts to mockery of law. 5. We have heard learned counsel for the parties and have perused the available record. 6. A bare perusal of the record shows that in the first round of litigation, a stranger namely Mansoor Ali had tried to lodge counter version of the occurrence, which was declined up to the High Court. Even the petition before this Court filed by the said Mansoor Ali was dismissed as withdrawn. This clearly reflects that the attempt made by the said Mansoor Ali on behalf of the petitioner has already attained finality. Surprisingly, the said Mansoor Ali was neither a witness of the occurrence nor he had any nexus with the incident, therefore, there was no compelling reason for him to file the counter version on behalf of the petitioner. In the second round of litigation, the petitioner himself opted to file private complaint which has been dismissed by the learned courts below. The learned High Court in the impugned judgment has observed that the petitioner has not approached the court with clean hands, but with nefarious intent as the counter version of the petitioner had already been investigated by the police while following all legal requirements. It was further Civil Petition No. 279-P/2015 4 observed that the only purpose to launch counter version is to create a strong defence that too with a delay of one year and the same could be termed as an afterthought and as such it does not create a sound foundation in the given circumstances. After evaluating all facts and circumstances, we could not persuade ourselves to come to a different conclusion than what has been arrived at by the High Court. We have been informed that the evidence has already been recorded and the trial is at the verge of final arguments. We are aware of the fact that at this stage any observation qua the merits of the case would certainly prejudice the case of either of the parties and the same would not be in the interest of safe administration of criminal justice. The grounds urged by the petitioner before us can safely be agitated before the learned Trial Court in the light of the evidence led by either of the parties. 7. For what has been discussed above, we find no reason to interfere with the well reasoned judgment of the learned High Court. This petition having no merit is accordingly dismissed and leave to appeal is refused. C.M.A. No. 5424 OF 2016 8. Through this application, the complainant of the FIR seeks to be impleaded as necessary party in Civil Petition No. 47/2016. We have noted that this Court vide order dated 20.07.2016 had directed that the complainant be arrayed as respondent in the petition, which was accordingly done and he was arrayed as respondent No. 2 in the main petition. In this view of the matter and since the main petition has been dismissed, this CMA has become infructuous and is disposed of accordingly. JUDGE JUDGE Islamabad, the 9th of February, 2021 Not 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. 481-K OF 2017. (On appeal against the judgment dt. 12.08.2017 passed by the High Court of Sindh in Const. P. No. D1802 of 2017). Premier Battery Industries (Pvt) Ltd. …Petitioner(s) Versus Karachi Water and Sewerage Board and another. …Respondent(s) For the petitioner(s): Mr. Haider Waheed, ASC. For respondent No.1: Dr. Farogh Naseem, ASC For Govt. of Sindh: Mr. Sibtain Mehmood, AAG, Sindh. Date of Hearing: 07.12.2017. O R D E R EJAZ AFZAL KHAN, J.- For the reasons to be recorded later, this petition being without is dismissed and the leave asked for is refused. JUDGE JUDGE JUDGE ISLAMABAD. 07.12.2017. M. Azhar Malik

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE GULZAR AHMED, CJ. MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Civil Petition No.4862 of 2018 [Against the judgment dated 23.11.2018 of the Federal Service Tribunal, Islamabad passed in Appeal No.508(P)CS/2013] Ajmir Shah, Ex-Sepoy. …Petitioner (s) VERSUS The Inspector General, Frontier Corps KPK and another …Respondent(s) For the petitioner(s) Mr. Aftab Alam Yasir, ASC Syed Rifaqat Hussain Shah, AOR For Respondents No.1-2 Mr. Nasir Mehmood, ASC Date of hearing: 19.08.2020. … ORDER Gulzar Ahmed, CJ-. The petitioner was employed as Sepoy with Bajour Scouts of the Frontier Corps. He deserted his post, pursuant to which he was proceeded against under Section 8(c) of the Frontier Corps Ordinance, 1959 (the Ordinance of 1959). On conclusion of trial against him, he was awarded punishment of dismissal from service vide letter dated 23.10.2008. Such punishment was imposed upon him under Section 10 of the Ordinance of 1959. The petitioner sat over the said order of punishment to him and did not file any departmental appeal, rather on 28.03.2013, he filed a departmental appeal on the basis of the judgment of Civil Petition No.4862 of 2018 2 the Federal Service Tribunal (the Tribunal) dated 29.11.2011, passed in Service Appeal No.300(P)(CS)/2011 of one Muhammad Ali, Ex-Hawaldar of Bajour Scouts, where the punishment of dismissal from service of Muhammad Ali is said to have been converted by the Tribunal into compulsory retirement and it was also alleged that the petition filed by the Frontier Corps (F.C.) against such judgment of the Tribunal was dismissed by this Court and the order of the Tribunal was implemented. This departmental appeal of the petitioner was rejected by the Inspector General, F.C. and such was communicated to the petitioner vide letter dated 31.05.2013. The petitioner filed service appeal before the Tribunal on 01.07.2013, which by the impugned judgment dated 23.11.2018 came to be dismissed as time barred. 2. Learned counsel for the petitioner has contended that the petitioner was waiting for the decision on the service appeal of Muhammad Ali, Ex-Hawaldar and after the judgment was announced by the Tribunal, the same was upheld by this Court and it having been implemented, the petitioner filed departmental appeal and that the said departmental appeal having been rejected on merit and not on the ground of limitation, the service appeal before the Tribunal was in time. In this regard the learned counsel relied upon the case of Usman Ali Chhachhar vs. Moula Bukhsh Chhachhar (2019 SCMR 2043) = [2020 PLC (CS) 34] to contend that a 2- Member Bench of this Court has referred the matter to the larger Bench for considering the question of maintainability of service appeal before the Tribunal when the departmental representation is filed after its limitation period has lapsed. 3. We have considered the submissions of the learned counsel for the petitioner and have also gone through the record of the case. Civil Petition No.4862 of 2018 3 4. The admitted position on the record is that the petitioner was proceeded against under Section 8(c) of the Ordinance of 1959 and the charge having been proved against him, he was imposed penalty of dismissal from service vide letter dated 23.10.2008. Such penalty was imposed upon the petitioner under Section 10 of the Ordinance of 1959. Section 26 of the said Ordinance has allowed the Federal Government by Notification in the official Gazette to make rules and clause (d) thereof, inter alia, provides for making of rules for appeals. Pursuant to this provision of the Ordinance of 1959, the Federal Government has made the Frontier Corps Rules, 1961 (the Rules of 1961). Rule 11 of these Rules provides, inter alia, that every member of the Frontier Corps shall only be entitled to appeal against an order imposing upon him any of the penalties under Section 10 and Rule 14 thereof provides that such an appeal shall be preferred within one month from the date on which the appellant is informed of the order appealed against, unless the period is extended for unavoidable causes of delay so certified by the authority against whose order the appeal has been preferred. 5. On reading of the above provisions of the Ordinance of 1959 and the Rules of 1961, it is clear that the petitioner was entitled to file departmental appeal against an order imposing upon him penalty of dismissal from service and such departmental appeal had to be filed by the petitioner within one month from the date on which he was informed of the order appealed against. 6. It is admitted position that the petitioner filed the departmental appeal against the order of dismissal dated 23.10.2008 on 28.03.2013, after more than 4 years and 5 months. The petitioner has not attached with the petition the copy of departmental appeal, which he had filed Civil Petition No.4862 of 2018 4 against the order of his dismissal. However, as canvassed by the learned counsel for the petitioner before us that the petitioner did not file the departmental appeal, for the reason that service appeal of Ex-Hawaldar, Muhammad Ali was pending before the Tribunal and petitioner waited for the decision of the said service appeal, and only after such service appeal of Muhammad Ali was decided by the Tribunal, converting his penalty of dismissal to compulsory retirement, upheld by this Court and implemented by the department, the petitioner filed the departmental appeal. 7. In our view, such could not have been a sufficient cause or reason for the petitioner to file his departmental appeal after more than 4 years and 5 months. It seems that petitioner himself was not aggrieved of the order by which he was dismissed from service and the assertion of the petitioner that he waited for the result of the service appeal of Ex-Hawaldar Muhammad Ali, shows that the petitioner relied upon the grievance of Ex- Hawaldar, Muhammad Ali and not of his own. Had the Ex-Hawaldar Muhammad Ali lost his case, that would have been the end of the matter and the petitioner would have not raised grievance against the order of his dismissal. The law does not leave choice to an employee to raise his grievance after his colleague is succeeded in the case. The employee has to raise his grievance immediately when cause to him has arisen and more so within the limitation period for it is also provided by law. We may further note that Rule 14 in clear terms provides for filing of a departmental appeal within one month from the order imposing penalty. The extension of period for filing of a departmental appeal is also provided in the very rule i.e. for unavoidable causes of delay so certified by the authority against whose order the appeal has been preferred. We have not been shown nor is it pleaded in the memo of appeal that the authority, who has imposed penalty Civil Petition No.4862 of 2018 5 upon the petitioner, has extended the period for filing of the departmental appeal by the petitioner. No such certification of the authority is available on the record. 8. The submission of the learned counsel for the petitioner that the departmental appeal of the petitioner has been decided on merits and thus, the limitation for filing of the departmental appeal stood impliedly condoned by the appellate authority, we are not impressed by such argument of the learned counsel for the petitioner for the reason that the Rules itself provide for the manner and mechanism in which the period of limitation for filing of the departmental appeal could be extended i.e. unavoidable causes of delay so certified by the authority against whose order the appeal has been preferred. The implication of this Rule, as it appears, is that the petitioner was required to apply to the authority against whose order he wishes to file an appeal for extension of time citing unavoidable causes of delay and only after authority has so certified, the delay in filling of the departmental appeal could be condoned. As the record suggests, the petitioner has not applied to the authority seeking extension of time for filling of a departmental appeal. 9. It is well settled principle of law that where a law requires doing of something in a particular manner it has to be done in the same manner and not otherwise. Reliance in this respect is place upon the cases of Muhammad Hanif Abbasi vs. Imran Khan Niazi (PLD 2018 SC 189), Shahida Bibi vs. Habib Bank Limited (PLD 2016 SC 995) and Human Rights Cases Nos.4668 of 2006 etc. (PLD 2010 SC 759). 10. Further we note that the power for extension of period for filing of a departmental appeal under Rule 14 was vested in the authority against whose order the appeal is preferred and no power of extension of a period Civil Petition No.4862 of 2018 6 for filing of a departmental appeal apparently seems is vested with the appellate authority under the scheme of law as laid down in the Ordinance of 1959 and the rules made under it. Thus, we note that the principle of implied extension could not be pressed in the present case, for that, the appellate authority in law was not vested with the power of granting extension in filing of a departmental appeal. 11. Reliance of the learned counsel for the petitioner on Usman Ali Chhachhar’s case (supra) is also of not much help, for that, in the said case the Court has considered, inter alia, the provision of the Civil Servants (Appeal) Rules, 1977, which rules are altogether different from the rules made under the Ordinance, 1959, which were not subject matter of the cited case and thus, is distinguishable. 12. We are, therefore, of the considered view that the Tribunal in the impugned judgment has rightly found the service appeal of the petitioner to be time barred and thus, find no reason to interfere with the same. The petition is dismissed and leave refused. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 19th August, 2020 Approved for reporting Rabbani/*

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITION NO. 4878 OF 2021 (On appeal against the judgment dated 26.07.2021 passed by the High Court of Sindh, Karachi in C.P. No. D-3045/2021) Asim Murtaza Khan … Petitioner VERSUS The State through Chairman NAB, Islamabad … Respondent For the Petitioner: Mr. Abdul Shakoor Paracha, ASC Mr. Haseeb Shakoor Paracha, ASC Syed Rifaqat Hussain Shah, AOR For the Respondents: N.R. Date of Hearing: 06.09.2021 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 assailed the judgment dated 26.07.2021 passed by the learned High Court of Sindh whereby the Constitution Petition filed by the petitioner was dismissed and the order of the learned Trial Court dated 22.04.2021 was affirmed. 2. Briefly stated the facts of the matter are that the petitioner was Managing Director of Pakistan Petroleum Limited. On account of the alleged misappropriation, corruption and fraud in the acquisition of shares of a company namely Moravske Naftove Doly (MND) by the Pakistan Petroleum Limited, on the complaints of Chairman, Pakistan Petroleum Limited and Chairman, Securities and Exchange Commission of Pakistan a Reference was filed by NAB before the learned Accountability Court Sindh, which is still pending adjudication. In the said Reference, the prosecution has Civil Petition No. 4878/2021 2 produced Munir Hassan Ali as PW-1 for his evidence and for production of certain documentary evidence as mentioned in the seizure memo dated 16.06.2020. However, while recording the deposition of the said witness the petitioner objected that the said witness does not hold a proper authorization from the Board of Directors of Pakistan Petroleum Limited and the same may be produced. In this regard, he filed an application under Section 94 Cr.P.C. before the Trial Court but the same stood dismissed vide order dated 22.04.2021. Being aggrieved by the dismissal of his application, he filed Constitution Petition before the learned High Court of Sindh, Karachi, which also met the same fate. Hence, this petition. 3. The crux of the arguments advanced by learned counsel for the petitioner is that as Munir Hassan Ali (PW-1), who was supposed to produce certain documents during trial, was not properly authorized by the Pakistan Petroleum Limited, therefore, the said documents should not be exhibited and are inadmissible in evidence. He further contended that the objection was raised at the first instance and the learned Trial Court ought to have first recorded the objections raised by the petitioner and then proceeded with the trial. In support of the contentions, learned counsel relied upon Hayatullah Vs. State (2018 SCMR 2092). 4. We have heard learned counsel for the petitioner at some length and have perused the available record. So far as the argument of learned counsel for the petitioner that as Munir Hassan Ali (PW-1) was not properly authorized by the Board of Directors of Pakistan Petroleum Limited, therefore, the documents produced by him are inadmissible in evidence is concerned, the learned High Court has very ably dealt with this issue and held that as it is a criminal case, the production of evidence is to be considered on the touchstone of respective law pertaining to the collection and production of evidence in a criminal case for which Section 94 of Cr.P.C. is relevant. The High Court has rightly held that there is no need for the investigators to seek any authorization for production and seizure of record even from a court if the collection and seizure is needed from a company other than a banking company and admittedly Pakistan Petroleum Limited is not Civil Petition No. 4878/2021 3 a banking company. So far as the presumption as to documents produced as record of evidence, the learned High Court while relying on Article 91 of the Qanoon-e-Shahadat Order, 1984, rightly observed as follows:- “9. It is noteworthy that the above provision of law has also two-fold application. One pertains to the production of a document by a witness before a court while the other speaks about receiving such evidence by an officer authorized by law i.e. the investigating officer. If such document pertains to be a record or a memorandum of the evidence, and the same fulfill the other requirements of the aforementioned statutory provision, the presumption of genuineness will be attached to it as such the same may be considered as admissible evidence. Nevertheless, such presumption is a rebuttable presumption, as such, after production and exhibiting such document, its veracity is to be judged by weighing all the aspects including objection, relevancy and other factors. During the investigation, the investigators are duty-bound to collect every material including documentary evidence (either primary or secondary) and for their production, in court the prosecutor must consider the factors attached to its admissibility. 5. It is admitted position that the trial is still pending adjudication, therefore, we do not want to comment upon the merits of the case lest it may prejudice the case of either side. In the interest of justice, we deem it appropriate to direct that the disputed question regarding authorization and admissibility of evidence may be decided by the learned Trial Court. The learned Trial Court is directed to hear the objections of the petitioner and the other side and decide the same in accordance with law. The learned Trial Court is further directed to proceed with the trial expeditiously. So far as the case law relied upon by the learned counsel for the petitioner is concerned, the same is to the effect that inadmissible evidence should not come on the record and if any party tenders such evidence during the trial, the other party should immediately raise objection to the admissibility of such evidence and the court should decide the same before proceeding further. However, as stated above, the same is not the case here because in the instant Civil Petition No. 4878/2021 4 case the disputed questions are yet to be decided by the learned Trial Court. With these observations, this petition stands disposed of. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 6th of September, 2021 Approved For Reporting Khurram

{'id': 'C.P.L.A.4878_2021.pdf', 'url': ''}

{'id': 'C.P.L.A.4878_2021.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL, CJ MR. JUSTICE SYED MANSOOR ALI SHAH MRS. JUSTICE AYESHA A. MALIK Civil Petition No. 4899 of 2018 (On appeal from the judgment/order dated 25.09.2018 of the Peshawar High Court, Peshawar passed in W.P. 3870-P/2016). Crescent Textile Mills Ltd. Haripur …Petitioner(s) Versus Government of KP through Chief Secretary, Peshawar and others …Respondent(s) For the Petitioner(s) : Syed Rifaqat Hussain Shah, AOR For Respondent(s) : Nemo Date of Hearing : 14.02.2022 O R D E R UMAR ATA BANDIAL, CJ.- There is a request for adjournment by the learned counsel for the petitioner who is not feeling well. The matter was twice adjourned on his request on 13.10.2021 and on 12.11.2021. There is no medical certificate available on record to indicate his present illness. 2. The learned AOR submits that the application for adjournment was filed directly by the learned counsel. Consequently, he has no instructions in the matter and is not prepared with arguments in the case. In the circumstances, we are not inclined to adjourn this matter as it has not CP NO. 4899 OF 2018 2 progressed for three successive dates of hearing on account of the unavailability of the learned counsel for the petitioner. The petition is, accordingly, dismissed for non- prosecution. 3. In order that the matter comes to the attention of the learned Members of the Bar this order shall be reported on the website. Chief Justice Judge Islamabad 14.02.2022 Naseer Judge Not approved for reporting

{'id': 'C.P.L.A.4899_2018.pdf', 'url': ''}

{'id': 'C.P.L.A.4899_2018.pdf', 'url': ''}

(Appellate jurisdiction) MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR Civil PetitionS No.4963 & 5021 of 2018 (Against the judgments of the islainabad igh Court both H dated 04.102018 passed in Wt PetifiO No.1015/20i8 & 2132/2018) Chief Executive Officer, PeshawarElectric and power Company (PEPCO) (in CP No.4963/201 WAPDA thr. its Chairman & others (in CPNo.502h/20B ,pjtioner(S) Sajeeda Begum & others (in CP No4963/20 Gui Farah Jaan & others (in CP No.5021/20 For PESCOV For WAPDA:/Pt For the Respondents: Date ofHearing: ...gespondeflt) Mr. ASadJ1A -. Cr. (via video link from Peshawar) Mir Adam Khan, AOR/Al.i.-fr Syed Moam All ASCLCP.cO2t /} Mr. Mehr Khan Malik, AOR/ Ms. Farhafla Naz MarWat, ASC (via video link from peshawarl 17 .05 .2022 JUDGMENT Through the instant Petitions, the Petitioners have challenged two judgments of the Islamabad High Court both dated 04.10.20 18 (hereinafter referred to as the"Impugned Judgments"). rough the Impugned Judgements, the Peshawar Electric and Power Company (hereinafter referred as 'pESCO" as well as the Water and power Development Authority (hereinafter referred 'F - as "WAPDA") were directed to extend the Prime Minister's Assistance Package of 2014 to the private Respondents in their respective Civil Petitions (CPLA No.4963 of 2018 having been filed by PESCO and CPLA No.5021 of 2018 filed by WAPDA). 2. The brief facts leading to both these petitions are that two writ petitions were filed by Mst. Sajeeda Begum and Mst. Gui Farah Jaan (hereinafter referred to as the "Respondents") against PESCO and WAPDA respectively before the Islamabad High Court. Both of them prayed for directions to PESCO and WAPDA respectively to compensate them in accordance with the 2014 Prime Minister's Assistance Package, Mst. Sajeeda Begum contended that she was the widow of the deceased Ghani-ur-Rehman who, while employed as a"Lineman-2" with PESCO, died in-service on 20.07.2013.Mst. Gui Farah Jaan, on the other hand, is the widow of the deceased Rasheed Ahmed, who was employed as a Chowkidar (BPS-2) with WAPDA. Rasheed Ahmed died on 24.06.2016. Instead of the Prime Minister's Assistance Package, Mst. Gui Farah Jaan received WAPDA's own Assistance Package as recompense. These writ petitions were allowed by the Islamabad High Court vide the impugned judgements and both PESCO and WAPDA were directed to compensate the Respondents in accordance with the 2014 Prime Minister's Assistance Package in terms of office memorandum dated 20.10.2014. The impugned judgements have now been challenged before us by PESCO and WAPDA. - (WI' PflTTPS O.-l%3 A 21 (If 3. The Learned Counsel for PESCO contends that PESCO is a public limited company incorporated under the Companies Ordinance, 1984. While PESCO may be a government-owned company, its employees cannot be treated as government employees in the absence of any statutory law or rules expressly classifying PESCOs employees as government employees. Without any such statutory backing, the employees of PESCO could not have been considered as government employees. As a result, the Respondents were barred from approaching the Islamabad High Court in its constitutional jurisdiction for the enforcement of the 2014 Package. It is argued that, even otherwise, Respondent Sajeeda Begum was not eligible to be granted the benefit of the said package because her husband died before the 2014 Prime Minister's Assistance Package was granted. Finally, the Learned Counsel contends that PESCO did not fall within the territorial jurisdiction of the Islamabad High Court having no office or presence in territories falling within the jurisdiction of the Islamabad High Court. He maintains that the High Court lacked territorial jurisdiction to entertain and decide the matter. 4. The Learned Counsel for the WAPDA has raised similar as well as other grounds. The Learned ASC contends that WAPDA's case had been clubbed with the cases of other government departments by the High Court. While other respondents before the High Court may have been government departments, WAPDA is a body corporate which is related by its own Act and Rules i.e. the Pakistan Water And Power Development Authority Act of 1958.He contends that in the normal course of business, WAPDA exercises independent autho rity and WAPDA'S Competent Authority had already devised its own Assistance package for the benefit of its employees. He contends that the Respondent, Gui Farah Jaan had submitted an application for grant of WAPDA'S assistance package after the death of her husband. WAPDA had processed her application and had already compensated her according to WAPDA'S assistance package. Therefore, she could not have approached the High Court with a prayer seeking a direction for WAPDA to grant her an additional package to pay additional compensation according to the prime Minister's Assistance Package which in any event was neither applicable to nor had been adopted by WAPDA. 5. The Learned Counsel for the Respondents, on the other hand, has defended the impugned judgements of the Islamabad High Court. She contends that beneficial legislation and! or policies apply retrospectivelyand that the High Court had rightly extended the benefit of the 2014 Assistance Package to the Respondents. She has relied on two urt passed in judgements of this Co g12IQ! (2015 SCMR 1418 and pctOrSOQLI yffj?s.Saaduh1 (1996 SCMR 350). Kha IT 5 6. We have heard the learned counsel for the Parties at length and gone through the case record with their assistance. 7. We have noticed that the basic question of law on which the structure of both the Learned Counsel for PESCo and WAPDA'S arguments rests on is whether PESCo and WAPDA are authorities against which the Islamabad High Court could exercise Jurisdiction under Article 199 of the Constitution of Pakistan, 1973 Before we proceed to discuss the merits of the case, we consider it appropriate to first examine the relevant constitutional articles d laws that re gulate the High Court's jurisdiction,the laws that re late PESCo and the laws that regulate WAPDA 8. Article 99(1) of the Constitutionof lays down the Jurisdiction of the High Courts of P&cj It is reproduced below for reference: Article 199: Jurisdiction of the Nigh Court I. Subject to the Const üon a High Court m if it ay, is satisfied that no other adequate rmedy is Provided by law- e a. on the application of any aggrieved party Make an order- I. directing a person e PCfloing, within the terntoal urlsdlcbon of th Court, thnctjons in con0 with the airs of the Federation, a Province or a local authoi-ity to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or b. on the application of any person, make an order territorial 1. directing that a person 11 Custody within Jurisdiction of the C the ourt be brought before being held so that the Court may satjs itself that he is not an unlawfulin Custody without lawful manner; or authority or in T FcTt fllfllOM ftftSJ A Oh1 DY 2flfl 6 ii. requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or c. on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercisin g any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II. (Underlining is ours) As was correctly pointed out by the ASC for PESCO, PESCO is a body corporate that had been incorporated under the Companies Ordinance of 1984. Therefore, for the purposes of this instant petition, Section 7(1) of the Companies Ordinance, 1984 is relevant. It is reproduced below for reference:- 7. Jurisdiction of the Court (1) The Court having jurisdiction under this Ordinance shall be the High Court having jurisdiction in the place at which the registered office of the company is situate: Provided that the Federal Government may, by notification in the official Gazette and subject to such restrictions and conditions as it thinks fit, empower any civil Court to exercise all or any of the jurisdiction by this Ordinance conferred upon the Court, and in that case such Court shall, as regards the jurisdiction so conferred, be the Court in respect of companies having their registered office within the territorial jurisdiction of such Court. (Underlining and highlighting is ours) WAPDA, as was contended by the Learned ASC for WAPDA, is governed and regulated by the Pakistan Water And Power Development Authority Act of 1958 (hereinafter referred to as the "WAPDA Act"). The relevant sections of the WAPDA Act need to be examined before we can come to the merits of the case. Section 1 of the WAPDA Act is reproduced below for reference:- Section 1. Short title and extent flTh PETflQS MO& II1I OF I! 7 (1)This Act may be called the [Pakistan Water and Power Development Authority Act, 19581; (2) It extends to the whole of [Pakistan] except the [Districts] of Karachi.] Section 3 of the WAPDA Act concerns the constitution of the WAPDA. It is reproduced below for reference:- Section 3. Constitution of the Authority (1) There shall be established an Authority to be known as the [Pakistan Water and Power Development Authority] for carrying out the purposes of this Act. (2) The Authority shall be a body corporate, shall be entitled to acquire, hold and dispose of] property, shall have perpetual succession and a common seal and shall by the said name sue and be sued. (Underlining and highlighting is ours) Section 17 of the WAPDA Act deals with the employees of WAPDA and their employment. The relevant portions of Section 17 are reproduced below for reference:- 17. Employment of officers and servants (1) The Authority may from time to time employ such officers and servants, or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit: [Provided that all persons serving in connection with the affairs of [a Province] in the Electricity and Irrigation Department shall be liable to serve under the Authority, if required to do so by the Provincial Government] on such terms and conditions as the [Provincial Government] may, in consultation with the Authority, determine but shall not be entitled to any deputation allowance: Provided further that the [Provincial Government] may, in relation to any such person as aforesaid, delegate such administrative, disciplinary and financial powers to the Authority as the [Provincial Government] may deem fit: Provided also that the terms and conditions of service of any such person as aforesaid shall not be varied by the Authority to his disadvantage.] [(1-A) [(1-B) Service under the Authority is hereby declared to be service of Pakistan and even' person holding a post under the Authority, not being a O S3 IW rm 8 person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973).] [(1-C) [(l -D) (2) Section 29 of the WAPDA Act deals with the Regulations of WAPDA. It is reproduced below for reference:- 29. Regulations For the purpose of carrying into effect the provisions of this Act, the Authority may, with the approval of the Government, frame such Regulations as it may consider necessary or expedient. 9. Having gone over the relevant laws, we will now go over the Prime Minister's Assistance Package. According to the record, the 2006 Prime Minister's Package, passed by the Cabinet Office vide office memorandum dated 13.06.2006, was a package meant to compensate the families of those government employees [underlining is ours] who died during their employment as government employees. The said assistance package took effect from 01.07.2005 and there was a bifurcation between the beneficiaries of the Assistance Package. One class of beneficiaries were those whose relative(s) died in-service and the other class were those whose relative(s) died in security-related deaths. Going over the 2006 memorandum, we have noted that the 2006 Assistance Package was meant expressly and exclusively for government employees only. A perusal of the 2014 Assistance Package office memorandum (dated 20.10.20 14) shows that the intent of the memorandum is similar to its 2006 I CTVt PE1T1WS l44'3 ni grin', counterpart inasmuch as it pertains to the beneficiaries of such a package. The 2014 package as well as the 2006 packages were both meant for families of Government employees who died in-service or security-related deaths. 10. Having gone over all the relevant laws and policies on record, we will now go over the merits of each petition. 11. As far as the merits of PESCO's petition are concerned, PESCO is regulated by the Companies Ordinance of 1984 and therefore, the relevant High Court for the purposes of issuance of any directions under Article 199 of the Constitution is the High Court where the main office of PESCO is situated. PESCO's headquarters are situated in Peshawar, KPK and none of its activities are undertaken within the territorial jurisdiction of the Islamabad High Court. It has no place of business, branch office or presence in any of the territories that fall within the jurisdiction of the Islamabad High Court. Therefore, in the absence of anything to the contrary, reading Article 199 of the Constitution with Section 7 of the Companies Ordinance of 1984, brings us to the un-escapable conclusion that the relevant High Court for the purposes of issuing any directions (if at all any High Court could assume jurisdiction) would have been the Peshawar High Court and not the Islamabad High Court. 12. The next question requiring determination is whether the employees of PESCO are government employees for the purposes of 2014 PM's Assistance Package. The rfllflOiS M) SO & IPll Of ml! 10 Learned Counsel for the Respondents could not point out any law or rule that would lead us to the conclusion that despite being incorporated under the Companies Ordinance, 1984, PESCO's employees were governed by any law making them government servants. They are employees of a statutory corporation and the terms and conditions of the service of their employees are determined by their own rules and regulations. We therefore conclude that the Islamabad High Court could not have directed PESCO to release funds in terms of the 2014 Prime Minister's Assistance Package in light of the fact that PESCO's employees were not government employees and that PESCO did not fail within the territorial jurisdiction of the Islamabad High Court for the purposes of Article 199 of the Constitution of Pakistan, 1973. 13. As far as the merits of WAPDA's case are concerned, the Learned ASC for WAPDA has not denied that WAPDA was amenable to the jurisdiction of the Islamabad High Court. Instead, he has argued that the Learned High Court could not have directed WAPDA to release the funds in the presence of WAPDA's own assistance package, which the Respondent GuI Farah Jaan had already availed. Adverting to the WAPDA Act, we have noticed that WAPDA, for the purposes of conducting its affairs, acts as a body corporate. Adverting to a 3-member bench's order dated 13.09.20 12 passed in Muhammad Y usuf Khan us. WAPDA thr. its Chairman etc., it was held by this Court that it would be appropriate for WAPDA itself to decide whether granting or 11 declining such financial relief to its employees would be in its interests or not. We have gone over WAPDA's office memorandums annexed by the Learned Counsel for WAPDA and note that WAPDA had, of its own volition, and according to its own rules which have a different genesis, granted its employees an assistance package similar in spirit to the Prime Minister's Assistance package. The said package had been ranted by WAPDA vide its office memorandum dated 05.07.2007 and has periodically been updated by WAPDA in order to cater to changing conditions and circumstances. WAPDA had internally assessed the compensation the Respondent Gui Farah Jaari was entitled to and had compensated her accordingly. This assessment was never challenged by GuI Farah Jaan before WAPDA or any competent forum. The matter had, for all intents and purposes, attained finality. Even if Respondent Gui Farah Jaan were to challenge the matter, the relevant forum would have been the relevant Service Tribunal since the Assistance Package would have formed part of the terms and conditions of service. Therefore, adjudication of the matter by the High Court would have been subject to the constitutional bar under Article 212 of the Constitution of Pakistan, 1973.Even otherwise, while WAPDA may have been amenable to the jurisdiction of the Learned High Court, the Learned High Court in passing the impugned judgement has not appreciated the fact that WAPDA is an independent Authority, with its own Rules, and that while the Federal Government may appoint WAPDA's Chairman and Members, WAPDA has 'civil Ptnh1ONsNO.49s3 j OF2S1! 12 the authority to frame independent Regulations under Section 29 of the WAPDA Act (with approval from the Federal Government). WAPDA had granted its employees its own Assistance Package, keeping into consideration its own financial considerations and interests. This Assistance package had been approved by Competent Authority in WAPDA and then passed on the Federal Government which accorded its approval before the funds were disbursed. Therefore, in principle, it would be unconscionable for an employee of any department to benefit from two Assistance Packages if, after availing a department's indigenous Assistance Package(which had already been sanctioned and approved by the Competent Authority and the Federal Government), they subsequently sought a direction for grant of another (better)Federal Assistance Package. Further, as noted above, employees of WAPDA are not government servants and the 2014 Assistance Package was announced for the benefit of government servants only. There was no bar on the board of WAPDA against adopting the package of 2014. But the fact remains that it was not adopted and the High Court had no legal basis to foist the said package on WAPDA. For these reasons, we find that whilst WAPDA was amenable to the High Court's jurisdiction, the Learned High Court failed to appreciate this aspect of the case and could not have imposed another Assistance Package on WAPDA without allowing WAPDA to deliberate on it both financially and logistically. -- • CTVa. t1TT1fl\ ft&41 A p2I p 2flI 13 14. We have gone over the cases relied on by the Learned Counsel for the Respondents in support of her contentions and find that law settled in the said judgements is not applicable to the cases of the Respondents and is of no help to them. The cases relied on were concerning matters pertaining to government departments and their employees as opposed to dealing with either PESCOs or WAPDAS employees. The same are therefore distinguishable on law as well as facts. The question of whether or not PESCO's or WAPDA's employees were government servants was not examined by the High Court. We therefore find that the Impugned Judgement of the High Court proceeded on erroneous grounds and the reasoning is not in consonance with the relevant provisions of law and principles settled by this Court. Hence, the said Judgements are unsustainable. 15. In light of our aforenoted reasons, we convert both these petitions into appeals and allow the same. Both Impugned Judgements dated04.10.2018 passed by the Islamabad High Court which are the suict matter of tpese Petitions are accordingly set aside. ISLAMABAD. THE 17th of May, 2022 Kh Sahihzada, LC1926/* Nel Approved for Reping*

{'id': 'C.P.L.A.4963_2018.pdf', 'url': ''}

{'id': 'C.P.L.A.4963_2018.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.509-P/2012 (Against the judgment dated 14.09.2012 passed by the Peshawar High Court, Peshawar in C.R. No.156-P/12) General Manager, SNGPL, Peshawar …Petitioner Versus Qamar Zaman and others ..Respondents For the petitioner: Mr. Asad Jan, ASC For the respondents: N.R. Date of hearing: 07.07.2021 ORDER MAZHAR ALAM KHAN MIANKHEL, J-. The petitioner, through instant petition for leave to appeal, has questioned the judgment dated 14th September, 2012 of the Peshawar High Court, Peshawar whereby civil revision of the petitioner against the concurrent findings of the trial Court and the appellate Court regarding decretal of suit of the respondent for declaration was dismissed and the concurrent findings of the two Courts below were upheld. 2. On the very first day of hearing i.e. 30th June, 2021, this Court had observed that a short question of maintainability of the suit and jurisdiction of the Civil Court was involved, so, the respondents were ordered to be put on notice for 7th July, 2021. C.P. No.509-P/12 2 3. Today when the case was called for hearing, the Court Associate informed the Court that despite service of notice, the respondents are not in attendance. They are, therefore, proceeded ex- parte. 4. Learned counsel for the petitioner confined his arguments only to the question of maintainability of the suit and jurisdiction of the Civil Court in view of the provisions of Section 43 of the Oil & Gas Regulatory Authority Ordinance, 2002 (the ‘Ordinance’) which reads as under:- “ 43. Ordinance to override other laws. (1) The provisions of this Ordinance, the rules and the regulations, and any licences issued hereunder shall have effect notwithstanding anything to the contrary contained in any other law, rule or regulation, for the time being inforce, and any such law, rule or regulation shall, to the extent of any inconsistency, cease to have any effect on the commencement of this Ordinance and the Authority shall, subject to the provisions of this Ordinance, be exclusively empowered to determine the matters in its jurisdiction as set out in this Ordinance. (2) Nothing in this ordinance, or any repeal effected thereby, shall affect or be deemed to affect anything done, action taken, proceedings commenced, directions given, instruments executed or orders, rules or regulations issued under or in pursuance of any law repealed are amended by this Ordinance and any such things, action, proceedings, directions, instruments or orders shall, if in force on the commencement of this Ordinance, continue to be in force and have effect as if the same were respectively done, taken, commenced, given executed or issued under this Ordinance.” 5. A look at the above noted provisions of law makes it abundantly clear that the provisions of this Ordinance will have an overriding effect and the Authority shall, subject to the provisions of this Ordinance, be exclusively empowered to determine the matters in its jurisdiction as set out in the Ordinance. Sub-section (2), noted above, gives protection to all the matters, acts done and laws in force on the commencement of this Ordinance. C.P. No.509-P/12 3 6. Section 6 of the Ordinance defines the powers and functions of the Authority. Sub-section (2) clause (q) of Section 6 empowers the Authority to protect the interest of all the stakeholders including consumers and the licensees. For ready reference sub-section (2) clause (q) of Section 6 of the Ordinance is reproduced below:- “6. Powers and functions of the Authority. (1)….. (2) Without prejudice to the generality of the foregoing, the Authority shall- (a) …… (b) …… (c) …… (d) …… (e) …… (f) …… (g) …… (h) …… (i) …… (j) …… (k) …… (l) …… (m) …… (n) …… (o) …… (p) …… (q) protect the interests of all stakeholders including the consumers and the licensees in accordance with the provisions of this Ordinance and the rules; (r) …… (s) …… (t) …… (u) …… (v) …… (w) …… (x) …… (y) …… ” Section 11 of the Ordinance prescribes the procedure for redressal of disputes by filing complaints which reads as under:- “11. Complaints. (1) Any interested person may file a written complaint with the Authority against the licensee for contravention of any provision of this Ordinance or of any rule or regulation. (2) The Authority shall, on receipt of a complaint, provide an opportunity to the complainant as well as to the licensee, or any other person against whom such complaint has been made to state its case before taking action thereon.” C.P. No.509-P/12 4 Similarly, Section 12 of the Ordinance, provides the right of appeal. 7. The Ordinance being a special law explaining the powers and jurisdiction of the Authority and redressal of the disputes with overriding effect, then no other forum, Tribunal shall have the jurisdiction to step in for resolving the disputes. An overall look of the Ordinance would reflect that except the provisions of Section 43, which gives the overriding effect to the Ordinance, and the provisions of Sections 11 & 12 of the Ordinance, providing the procedure for resolving the disputes and appeal against the order/decision of the Authority, no other specific provision barring the jurisdiction of the Civil Court is there in the Ordinance. In the given circumstances, question would arise, as to whether a Civil Court, being a Court of plenary and ultimate jurisdiction, will have no jurisdiction to entertain the disputes referred to in the Ordinance despite the fact that there is no specific bar in the statute over the jurisdiction of the Civil Court? Answer to the above question would be a simple yes! No doubt, there is no specific bar provided in the statute over the jurisdiction of Civil Court but the above noted provisions of the Ordinance would reflect that an exclusive jurisdiction has been conferred on the Authority for determining the disputes referred to in the Ordinance which reflect the intent of the legislature. In such like situation, the jurisdiction of Authority is exclusive and the jurisdiction of Civil Court is barred but this would be an implied bar, very much permissible under the settled law and it will be equivalent to the specific bar provided in any statute. 8. We have gone through the record of the case which reflects that the suit was filed on 25th March, 2010 when the ordinance was very much in the field. The petitioners/department, it appears so, had C.P. No.509-P/12 5 raised objections of maintainability of suit and jurisdiction of Civil Court just as a matter of routine and issue No.5 in this regard was framed and was dealt with in a cursory manner as no proper assistance was given to the trial Court. Similar is the case with memo of appeal before the Appellate Court and memo of Civil Revision before the High Court which contains the ground/objection regarding lack of jurisdiction but no proper contest by the petitioners and findings by the Courts. The question of jurisdiction being a crucial one, going to the roots of the case, was dealt with in a very casual manner. 9. In view of the statutory provisions, noted above, this civil suit was not maintainable before a Civil Court of plenary jurisdiction. Thus the same was wrongly entertained by the Civil Court. Any judgment/decree/order passed/rendered by a Court having no jurisdiction would be no judgment/decree/order in the eyes of law and will have no binding force attached to it. So, in the circumstances, the judgments and decrees of the Courts below, being without lawful authority, jurisdiction and coram non judice, are set aside. Costs shall follow the event. We have been informed that the issue of department is still alive. So, we, in the circumstances, direct that the civil suit along with all necessary documents be sent to the Authority under the Ordinance and the same be treated as a complaint under Section 11 of the Ordinance, pending adjudication before the Authority, who shall decide the same strictly in accordance with law, surely after hearing the respondent, who was placed ex- parte today. The office of the Civil Court shall retain the photo copies of the said documents as its record. This petition, in the given C.P. No.509-P/12 6 circumstances, is converted into appeal and allowed in the above terms. Judge Judge Peshawar, 7th July, 2021 Nasir Khan /- ‘Approved for reporting’

{'id': 'C.P.L.A.509-P_2012.pdf', 'url': ''}

{'id': 'C.P.L.A.509-P_2012.pdf', 'url': ''}

Civil Procechire,. 1908 remandect.the -matter .baCk to the trial. Paragraph 2 of the :impugned jUdgernent:.Observed that 'the LOCal . Commissioner �perform his job.. honestly. The-evidence: recorded and documents received, by the .Local. Commissioner were. not in accordance with law. Consequently,..the Revision waS•alloWe and judgements and d.ecree:of.learned trial. Coutt.; as � by.- the :Appellate cutirt; were Set.aside.i: suit..instityted. an .behalf � . ,11177Tr...?!.." IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdietion) PRESENT: jUSTICE.MUSHIR-ALA: WIR.-.JUSTICE AMIN-Ub-DIN KHAN .140.5 IQ OF 2019:. (Against the jiadgrherii dated'05:12:2018 passed by Lahore High Court Lahore hi C 2 144/ 2013). • . I7a.F.46an NakVa.,•4 � ....Petitioner( VERSUS Alta Muhammad (deedj•liki,•LRs � ...RespOndent(4 For the Petitioner(S): � Ch. NUsrat Jayed. Bajwa, ASQ • Syed:Rifagal: Hussain Shah; AOR For Respondents � Masood �ASC, Date of Hearing:. � 01..0.1,2,02:1 ORDER MUSHIR � j.---- The •Petitioner has impugned:: the judgment dated 05.12.2018;. pasgect-iby learned -Bench: of • Lahol-e High ::CoUrt;,' LahOrce; iii C.R.21441 .U-13, • Whereby,. the learned ReViSional COUrt, • in consideration of -the: fact that the learned Trial Court has neither recorded the evidence itself, nor Made: a memorandiun of the substance ..of..what each••Witness deposed, under .h S own hand.. and signature as mandated in terms of Rule 8 of Order XVII1 of Code of 1;1I191i'itlimit;Hrdrim � . CP 5 UV L9 petitioner will depth .to be pending before the learned.Ctuil:court,:who will eicantine the.'witneesSes of the partieS himself as decide'..-t sante afresh," keepinOn iiiew the mandate of Order XX rule 5 C.PC" Th6 learned Ounstl for the Petitioner contends that t unpugned judgment. Tis based...on::,:the.::a.asuroption and :: supposItion,: -nett::iBeriCli' .-asSurned 'in .,pitra.:f?:_,.! that .1!!the.-4p44...' COritil*SiOttei diet not 7et1ot-11v 1:11.4. jp12 henestly, whO:.cluring. . � • � ..• � • .,C.-OminatOrt - recorded:sppy of rei 40s tptaqk against the gist :c.1.0461.1. „ as substance of `their= examination in chief Although, neitherSpeci objections. Wer e. raised:during ,entr.se. of 'trial nor; it. was agitated in ivil..Revissi'on.:inhand, ":The observation inade in the ':judgment that I was persuaded that some wrong for some ulterior motiaef with collusiveness:was committed," 'remains unsubstantiated. In'additiOn':, to the InisappreciatiOn rule 8 of order XVIII CPC, it was also urged''. that impugned judgment based on: SurmiSes and conjectures on extraneous considerations which are not substantiated from the. record, was argued with great vehemence, by the learne Counsel for the Petitioner that, the learned. bench of the -:high :coptf erred to rely, on. Ordei° � Rule 8 CPC to discard the entire evidence recorded by :Consent of the partieS through' . 6C COnnnisSione.r. I was c.ontended that evidence was recorded in . . • ....accordapce with :foxy . .y... t � ;:.Cotrinn$sioner: :Neither: .11*. • . � , � , � .:• Respondent objected to the appointment of Local' CommisSioner, showed.-any.reservation.as I:6 conduct of the.Cuirunissioner or on. the . . � . � . � report it COMinisSione !'s reportAt Was.argded that the learned .bench grossly . � . Court to state its decision on each issue. provided. Tor Under they C,ode4 � normal circumstances; the evidence of a witness is, to he recorded by. a judge, in open Courts,.. under his own hand, .;superintendence; and/or linger 1.4io personal direction6, The evidence of a withesa is 'taken orally- in .open. � in 9"Code Civil Proeedure; i908 3. Section5, Order. 00eXVI, xvw, XXVI.CPC 4 See Order � CPC in oivil:eases and Section 353 .to 365 Cr:P..a in ,Criitinal cases 5 • Rule 4 cq. Order kylII QPC 6 Rule 41 87? 5 oi Order XViII.CpC .9. .• C;;P.51.0./. l9• erred. � .00nclude.:that.: for • the non:-compliatice of the 1noted provisions ap.4 :•1114grnepto.•the � .of the: :loWe � ar.ce • rendered of no legal consequence, It .was. MSc; arguedlhat t e- learned Rev siorial Court failed. to exercise its:jurisdiction and decide the matter; on meritS., The learned 'edithael for the Respondent 'suppbrte impugned Judgment, :.On our query,:. h101 CandidlY • conceded :.that, Local CoMinissioner. 'Was appointed by. consent, of the Parties. He • alsb concedes that.ho'ohjeetion'as-to the conduct:arid/or MantieP . � . which the evidence was recorded by the Local Cominissiori.er' w raised before the learned Trial Court, the learned Appellate Court, or even in the Revision before the learned High court. Learned... counsel. ; for- the:ReSpondent � .to .d.eindiastrate. that '-a.14y. .was caused to. the Respondent by rccording.and receiVing.evi. ence,. tin otigh Localdoquilipsipiner. • Arginnents heard � . . ;perused. tne ..recdrd: � °Cofii t, . � .: � . � .. under the Code, subject to such term's and condition., as maY. e: - - � - --- • , � . � . � .. � . . � ... � .. � - � • � . prescribed3, may appoint:a Commission . � o t � a person, make• local trnfeatigatitiri, take accounts, and/Or: .make - partition-. . � • elaborate manner and procedUre in record evidence by 0:•COtirt CP'51.0/12. the presence and Under' the personal direction an d superintendeiriCe‘o the judge?'. The: COUrt ordinal* records the deposition of a.witnesS in Writing in question arid.anstjer foiin, but` in that of a riartative,.. generally in the •vernacular.language of the Court, or in Enl liSh,.. read. over to the WitneSS'after which any discrepancies or error(s). are:. • corrected:befOreSigningiO: 6. �here are tWo situations that are contemPlated oder the Code, where it as not necessary to take the evidence of a witness verbatiin; in kvriting.but.the judge'is reqiiired to aMake 'rnemorandta : of the, Substance . of iOhcit � witnessdePosei.e afi ie. eXaMination.... • - • �' � • � • .of each witness proceeds: One such situation that is provided. Wiz, where 'the epidence'ts not. taken down in Writing by the Judye',91 Secondly ill. unappealable Casesio: Every mernoranduin so , made forMs part: ofr,the,recordli:' � Cases 'where a judge:.. is, unable.: prepare such memorandiun,:hp ;i0: 47equired to recomi.,::reasoas for: the sarneP,.:On examining the scheme of Order XVIII. CPC, and other. enabling provisions of the. Cade, it is clear that where :the verbatim evidence is being s.:recorded in writing, there.: is no neceSsl :,of making anY ://ierii,oranqi,64 .,Of the. sUl stance of what each Wi 4s deposes.::T4p reebiding of s meinOtandlito of the substanCe o evidence rneari& the. essenee, 81.1hatalIPP) Oi'eert-lXaafihP P.A.Cfer1P4 that may be neCeSsary :for tile:jUst determination of the cont covers in. 7 See Order X RUle 2 Order XVIII Rule 4, 5, 9, and Order XXVI, Rule :CF;O ., 8 Rule 5 of Order XVilf: 9 Rule 8 of the Order XVIII 10 Rule 13 of Order u Rule 14 (2) of Ofder . XVIII 11 of Order XVIII 'cpb . � : . CP 510/19 7. �The manner � procedure for recording evidence through cominission-is elaborately provided for under Order CPC. Once th:6 Commission, under the orders of the toUrt, ' executed and. 3.e'• evidence � recorded, -Aide COrtatissioner:Is retinal the ,comlnission3:. together, :with his signed repro2:t,':and-,4be evidence recorded asper the: direction: and ordei t f.. the, Court. The evidence SO: recorded andjaken by the .Commission, Flab.* objections brad deeision of the ebtirt, forms part•of the record; and to be 'treated and considered as if the evidence has been .reordere by :the Cburt• � n:o.t :..appreciate. the •-acheine .of the provisions of the � 1h.e`E;eaifed bench of the High Court erred. to toy on. rule .8-of •Order'XVIII; to*discard• the .evidente •reCorded. through the •Conithission appointed by consent Ofthe Pa.t � Rile .8:of .0.rder )'VIII is not. applicable -•in • cases Where th - e eVidence is recorded., under. 41:e:orders of the .Court . :through. Commission, Under•-the given facts and circunista:ncea.o tlae ..case,e ther wo:p. � justification to .remanti. � case. t®::. ,• .• • � „..• � • •.. learned •:Trial -.t:ourt'•for•:.dremOvo. • .trial or • proceeding safreah.. The .:,trial;; Pourtpudge 2YAay &aloe until (consideration . the. • .'evidence.• memorandum .of..evideriee; as•• � „may be, .either:recorderd.,1*•". • •.,. � • .. � •••.. the cerwt. its ei f,•• the :predeesSor judge1.5,-..or through. CominiSSiOn,. Once -suCh;.report..of the commissioner, along 2 with. the'evidence-;:po: • recorded is la- ken � -eeord,-.•It' forms part':.6f the. jaidiCial::-;reet4..d.,,•:, and is to he i7ead...atanY•••:hearifig of 'the ,suitI3 and:fOr ;making.any order car pkoriounQerfient,of ,Judgment: The provisions .rioted herein. is Rule '4 anit.1.0 of 0,r-der xxya.:ropc 11 Order XVIII and XXVI CPC 15 Rule 15. of Order XVIII; CpC :16 Order XXVI; Rule '7, CPC, 17 Rule 16 (3) and. Rule ri of Order XVIII', CPC .• � • a. • . se 17, W,',"3",,---.'', ":"3griPnrk'.7.PpLiPrrrrigor.spirneRr,A CP' 51 0 / 19 are metre enabling. PrOviPriori; :relating to :a matter of procedlut. and •. � • • not affecting the jurisdiation of the: Court. 8. �Where coUrt, for any reasons; is dissatisfied with proceedings of COMmissioneri there is nothing- in the Code; Which • preVciitS. it froth directing a further :eitqUiry -as it '.1.har ..C1.60,1) f .811:bsstitp:ong the:- :cOminisPiOner :andlor•:recalling afid witriesS alrea.d.y exa.i-nined.by...the commissioner; Whose deposition found to • be illegible; .arribiguous � ttnclear, on any Materia • -. particular affeeting the merits ofthe case. A party carinOt appeal" the 'cleciSiork of a: r.eVisional Court for de,--novo trial ad a Matter of righ-08'.:. . � . It apPearS that the:learned bench of the ijigiii,Cfati4te into error while'conSidering:the implication of 14ile- 8 Of Order .x.\44-. CPC and misapplied :ttie same ori:the evidence recorded throtighlhe. commission, acting under .section 75- read with Ord.er • appointed by the COurt, 10, � It is not always necessary that the. Court - may. ~record' evidence itself. For A variety of:reasons, it May be recorded, through • A Conuni;iSiciri.:19. The -Conit ai.S',a..prificipal 1116 Sr elerci.se p9WerP. for Per.sna appearance.,Of a. 'witness in frOnt of.:the CoMmissiorr either ant.. cif its own accord or on applieation Ofeither party26:1-To*vpr, doeSnot bar the Coin I. itself of the 4ithoi-ily to examine the ;witness t is .,pot satified.. 1- � Rule 1.6 of:bider XVIII; it is prOliide&thatith.-::.: Order...1/1 II; � •.:: • � . 1§Fu,1 'FII . � • 21 Order KAU, Rule 17 . delegate alatheritY;s• :Under � -75' or brder ZIEZaliETE:RiaT.D37.2riemsassamm..: UP 510/19 :.cases Where no appeal: � the judge may ;merely .:113.a,i<&: meinorand:11M. of substance. of...the evidence.: Rule 15 of Qrder..X contains a general provision, that a succeeding Judge can. deal WI . � ; any :evidente or merpOrandUrn taken by his predecesSerand:Pricieee .with the. trial: , proViSiortS: 'of CPC', relating � an attendance,: examinatioh pf-WitneSses",. and producing 'Of doeurnents the penalties imposed On the witness could he exercised by the CommisSioner executing, the order of. the Court is deemed to :Oe,:a . Civit"Court 22, 12. � As noted aboVe, the learned CoupSel for the Respondent was net able to ow :That :any. preindice has :been caused l:e..'the Resocederit, rattier the comMission :wa.s.. consti.tuted by consent' the :parties. Iincler the. giVen facts arid "cinchrrista.nces : niceases, wl-tere evidence is reCoreled• through Cominissioxi, Rule .8 .0f Order is hot attracted. -As regard. evidentiary value documents exhibited " and produced before the Loe Comtnissionst23 it is for the :learned � "oust and the ..Appellate:: court that has tO eXamine:'and :appreciate ta eVidetitiOrk..valAce, and admissibility): � otherWise and the revisional court; may see .exercise of. jurisdiction � :accordance with � parameters, The evidentiary value and admissibility can also.be examined further by: .:: : the appellate ' Cdtirt in case: it is wrongly adMitted or appfeciatect within the 'oet: parameters, of :16.W.' In this:view of the Matter, the impugned judgment cannot be.sUstaihed. 22 See Ruls 16 to .113 of OiC1er_XXVi CPO is Qa.rilin-e-ShdhadatUrderi -1984; Section 91. incitiired.'froin — both the counsels •ag•-•-t0 .whefic: •.• � •.. matte17'was. reinanded. by ..t; .1--fightourt.to -the 'learned WO taint . -0a.S. r..pliett'ithat:the Matter: wa& remandedo. 08',12.204; • •••••,• . Alinnst.0i.o. • yeatS‘: haVe'relapised, �eVideriCe...cOUld � hay • • � • � • � ••• � • been reCorded.-and case could have , been decided., It that ..the e :case, is • still- pending .on.,. account jUrisdietion/Cciurt � Pindi;Bhattiari. to LahOre • • � • • matter:could-not b.e.proceecled... Accordingly � t e .6aSe has net been. proceeded'. • decided:. by'the learned -trial Court, thei:record and proceedingS iyrth:e • edurt May be remitted-r- back: to the'iparned � 000i7 • • � •• impugned judgment s :set' � Civil; Revision No. ,'"11-4~ X1.3 tithe • • � • Motiamirtacideceaedj:th.toitgh-L:R: etc. .14s: .Fictsaaii, Nerukez1. shall be deerned to be pending before the learned High :Court. Subject Civil Revision . shall...he. heard' arid cleCided oil. rilelits strictly ..in-accordance.Nvitill4w. ifter-dijc notice to the parties. The- instant AVO. petitidn is 0611'i/cited: ih o appeal- anc allowed in the terins noted:above. ISIAlviABAD . 't: JanlJaty,: 2021 Approved for Reporting . • is stoted.6.t of : transfer: thetefor,. -.t.

{'id': 'C.P.L.A.510_2019.pdf', 'url': ''}

{'id': 'C.P.L.A.510_2019.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.51 AND 57 OF 2015 (Against the judgment dated 12.1.2015 of the High Court of Baluchistan, Quetta passed in CP Nos.501 and 504 of 2014) Maqbool Ahmed Lehri (In CP 51/15) Ali Muhammad Baloch (In CP 57/15) … Petitioners Versus NAB & another … Respondents For the petitioners: Mr.Abdul Hafeez Pirzada, Sr.ASC (In CP 51/15) Mr.Afzal Ahmed Siddiqui, ASC Mr.Baz Muhammad Khan, Advocate a/w petitioner (In CP 57/15) Mr. Kamran Murtaza, ASC Syed Rifaqat Hussain Shah, AOR. a/w petitioner For respondent (NAB): Mr.Nasir Mahmood Mughal, Special Prosecutor Date of hearing: 20.4.2015 ORDER MAQBOOL BAQAR, J.- The petitioners, through the above petitions, have assailed the judgment dated 12.1.2015 of a learned Division Bench of the High Court of Baluchistan, whereby two separate petitions bearing CP Nos.501 and 504 of 2014, filed by the petitioners, have been dismissed, and the order granting ad- interim bail to them has been re-called. 2. The facts of the case, in brief, are that a certain piece of land 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 CP 51&57/15 2 Development Authority (“QDA”). However, a portion of the aforesaid acquired land, bearing Khasra No. 2250/517 situated in Mohal Sirki Kalan, Tappu Saddar, District Quetta, measuring 30,492 sq.ft. which remained unutilized and was reserved for the future expansion of the bridge, (“the land”), was purportedly sold to one Sultan Ahmed through a purported sale deed dated 26.4.2007, purportedly executed by QDA in favour of 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. It was in respect of the above purported transaction that reference has been submitted by National Accountability Bureau (“NAB”) where arrest of the petitioner has been ordered. It is through the impugned judgment that the petitions filed by the present petitioners against the filing of the reference have been dismissed. 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 1990 that 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 Sultan Ahmed for a period of 30 years on 06.5.1990. For such allotment 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 CP 51&57/15 3 ownership of the land is of QDA, yet recommended leasing out the land in favour of Sultan Ahmed, and sought permission to allot/lease out the land and to execute such agreement in favour of 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, 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. 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 filed a Criminal Revision before the Additional Session Judge, Quetta. In his suit 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 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, CP 51&57/15 4 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 19.4.1993, Sultan Ahmed has no locus standi and his possession of the land is unauthorized, and dismissed the suit. Upon an appeal filed by Sultan Ahmed on 8.5.1996 the dismissal order was set-aside and the suit was remanded to the trial 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 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. 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. 5. Undettered by the above cancellation, 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 CP 51&57/15 5 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 same to QDA “for necessary action”. Whereupon the Director (Estate) Commercial, QDA, neglected to mention the afore noted crucial aspects of the matter and simply stated that the land in question is in possession of Sultan Ahmed since 1991, and forwarded the aforesaid purported lease deed executed by the former Mayor, MCQ in favour of 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 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 CP 51&57/15 6 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 follows:- “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.” 6. 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 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 to the above letter/offer 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:- CP 51&57/15 7 “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.” 7. Through letter dated 30.4.1999, DG, QDA informed Sultan Ahmed of the above decision and that the aforesaid letter dated 20.8.1998 be treated as withdrawn. 8. However, the matter did not rest here, as 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 the 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 five years before the said order and that in the meanwhile the value of the land appreciated substantially. 9. Through letter dated 14.11.2002, petitioner Ali Muhammad Baloch, advised Sultan Ahmad to deposit 5% of the tentative price of the land; as previously determined so that the matter may be placed before the governing body of QDA for their decision. 10. However, still 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 CP 51&57/15 8 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 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 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. Through letter dated 18.09.2004, petitioner Ali Muhammad Baloch in pursuance of the directives of the Chief Minister, revived the offer letter dated 20.08.1998 and directed Sultan Ahmad to deposit the cost of the land accordingly. 13. It was after a lapse of 17 months of the above, and only after the petitioner Maqbool Ahmed Lehri became 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 purportedly placed before the Board by way of an “ex-agenda item” under the heading “Confirmation of orders of Chief Minister CP 51&57/15 9 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.” 14. Regarding the above meeting/proceedings, it is pointed out on behalf of the respondents 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 it so appears 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 Sultan Ahmed, and for getting it vacated and submitting a report for the expansion of the bridge was concealed from the Board. 15. The purported sale deed was then purportedly executed by QDA on 26.4.2007, however, since the same did not specify 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 it therefore not be entertained. He further cautioned the Sub- CP 51&57/15 10 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. 16. The sale deed was executed without full payment of the purportedly agreed price of land being made and a substantial amount of the sale price remained unpaid at the time of the execution of the sale deed, such balance amount was paid only after the execution of the deed. 17. 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.” 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. CP 51&57/15 11 18. 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. 19. 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 publicity” and further that the lease money is to be charged “as per market value or through the process of auction”. In terms of clause 10 of the policy there is a CP 51&57/15 12 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. 20. Another crucial aspect of the matter is that 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 proprietary 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, even in case the land would not have been required for any public purpose, and even if it 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. 21. From the foregoing narration of the facts and events, it can been seen that not only the policy was grossly violated and blatantly contravened, but prima facie the subject transactions were affected through fraudulent machinations. The suppression of the termination and cancellation of the purported lease and also of the rejection of the very proposal for sale by the Governing Body QDA, is manifest from the above narration. It has not been explained as to how, why, under what law, rule and regulations or CP 51&57/15 13 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. Very serious and valid objections raised by the Chief Office of the Province in the matter were also ignored. Although as narrated in the summary referred to hereinbefore, Sultan Ahmad himself offered to, either pay the market value, or to surrender the land. The land was still sold at a grossly inadequate price. 22. Though illegally, however, the Chief Minister Baluchistan, as noted earlier also, 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 the order of the Chief Minister. 23. 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, through his letter dated 29.9.2006, confirmed that the issue of the land was not discussed in the meeting. The deep involvement and persistent interest of the petitioner Maqbool Ahmed Lehri in the matter from the very beginning can been seen, inter alia, from the facts that it was he who, as Mayor MCQ, despite the fact that land did not belong to MCQ, forwarded the recommendation of the Municipal Engineer for leasing the land in favour of Sultan Ahmed and for executing the agreement CP 51&57/15 14 accordingly, and that, as evident from the minister’s 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 Maqbool Lehri. Furthermore the process pertaining to the subsequent transaction, i.e. the execution of the sale deed, remained pending for about seventeen (17) months after Sultan Ahmed was finally allowed/advised to deposit the sale price, and was purportedly placed before the Governing Body, QDA, immediately upon petitioner Maqbool Ahmed Lehri’s assuming the office of the Chairman QDA, by way of “ex-agenda item”, where purported approval of the sale was purportedly obtained, despite the earlier adverse decision of the Governing Body, QDA not to sale the land. The purported approval and the consequential purported sale were 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 six years earlier, and to further unduly favour the beneficiary the larger portion of the land was designated as residential, to which category lower rate was applied. This was done despite the fact that Sultan Ahmad had earlier offered before the NAB, either to buy the land at the market rate, otherwise to surrender the land. The above misuse of the authority, it appears, was not just to benefit 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 Sultan Ahmed, which attorney also is a cousin of petitioner Maqbool Ahmed Lehri. Furthermore, as noted earlier, the land was purportedly sold to Sultan Ahmed on 26.4.2007, however, the above attorney was appointed through a CP 51&57/15 15 power of attorney executed on 17.4.2006, a year before the purported sale. The execution of the Power of Attorney as above clearly demonstrates strong confidence of the beneficiary that the land shall surely be allotted to Sultan Ahmed, otherwise there was no question of appointing an attorney to deal with something that did not exist. It also appears that the real purpose of obtaining the power of attorney was to secure the interest of the real beneficiaries, the brother and a cousin of petitioner No.1. In the NAB reference, it has been alleged that 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 respect the judgment of the learned High Court of Balochistan in the said CP has also pointed out, that the various signatures said to be inscribed by Sultan Ahmed on the applications purportedly made by him to the Chief Minister, from time to time, do not tally with his admitted signature on the record. The allotment in question being wholly illegal, mala fide and void has already been declared and treated by this Court as such. 24. Mr. Abdul Hafeez Pirzada, learned Sr.ASC who appeared on behalf of petitioner, namely, Maqbool Ahmed Lehri in CPLA No.51 of 2015, at the very outset submitted that the reference against petitioner was not maintainable and was violative of the mandate of Article 13(a) of the Constitution and the constitutional intendment of protection against double jeopardy. The learned counsel submitted that in fact prior to the present reference, earlier in the year 2001 also the matter was investigated by the NAB, against the petitioner in respect of the same land and CP 51&57/15 16 that the matter remained pending before the NAB upto the year 2003, however, since not enough evidence could be collected during the investigation to make out, a prima facie, case against the petitioner, an application was accordingly submitted before the concerned Accountability Court and the proceedings were thus closed through Court’s order dated 02.6.2003 and that the NAB authorities informed the petitioner of the closure of the investigation through their letter dated 10.6.2003. That the petitioner thus enjoyed protection against double jeopardy on the principle of auter foix acquit and under the mandate of Article 13 of the Constitution and therefore, the present reference, which has been filed subsequently on the same facts in respect of the same land, is not maintainable. He submitted that the provisions of section 9(c) of the NAB Ordinance are not analogous to that of section 63 of the Code of Criminal Procedure. Learned counsel submitted that petitioner Maqbool Ahmed Lehri in executing the lease dated 06.5.1990 has merely followed the orders of the two relevant Ministers and the Chief Minister of the Province whereas he only chaired the meeting of the Governing Body, QDA where the repeated orders/directives of the Chief Minister for conveying land to Sultan Ahmed were approved/confirmed unanimously. Learned counsel further submitted that the transaction was processed and channeled through the concerned functionaries of the relevant department before the same was approved by the Governing Body of QDA. Learned counsel emphasized that neither Sultan Ahmed in whose favour the land was conveyed is related to petitioner Maqbool Ahmed Lehri, nor is there any allegation of receiving any gratification or any favour from Sultan Ahmed by the petitioner. He submitted that reference is mala fide and ill motivated and the same is not maintainable on the touch stone of Article 13 of the CP 51&57/15 17 Constitution, however, the learned High Court has mis-construed the relevant provisions of law and erred in treating section 9(c) of the NAB Ordinance as analogous to Section 63 of the Criminal Procedure Code. The learned ASC submitted that the learned High Court not only refused to quash the proceedings and to grant pre- arrest bail to the petitioner but has in fact, in dismissing the petition, dealt with and treated the same as an appeal against conviction and have given finding of far reaching consequences by pre-determining the guilt of the petitioner. Learned counsel submitted that in facts and circumstances of the case, leave may be granted against the impugned judgment and the interim pre- arrest bail granted to the petitioner be confirmed. 25. Mr. Kamran Murtaza, learned ASC for the petitioner in CPLA 57 of 215, namely, Ali Muhammad Baloch, submitted that the reference against the said petitioner is wholly unfounded and totally baseless. He submitted that neither petitioner Ali Muhammad Baloch has passed any order nor has he made any conscious decision through the two letters said to have been written by him. He submitted that petitioner Ali Muhammad Baloch merely conveyed the orders of the Chief Minister for deposit of the price of the land. Learned counsel submitted that in so far as the bifurcation of the land into commercial and residential is concerned, the same was affected by the Incharge Town Planning, QDA and not by the petitioner Ali Muhammad Baloch, and further that the entire amount of the land price was deposited by Sultan Ahmed and nothing remained due and outstanding on account thereof. Learned counsel prayed for grant of leave to the petitioner. 26. On the other hand, Mr.Nasir Mahmood Mughal, the learned Special Prosecutor NAB, supported the impugned judgment and opposed the grant of leave to the petitioners. He CP 51&57/15 18 submitted that neither is the reference barred under Article 13 of the Constitution nor the petitioners are suffering double jeopardy in the matter. He submitted that no reference prior to the present one was filed against any one in respect of the subject land/transactions and only an investigation was initiated in respect of the lease of the land executed by the petitioner Maqbool Ahmed Lehri on 06.5.1990 which investigation was dropped. Whereas the present reference pertains to the sale deed executed on 26.4.2007 and there is no question of violation of the principle of auter foix acquit. He urged for the refusal of leave and dismissal of the petitions. 27. From the facts as narrated and analyzed hereinabove, the deep involvement of petitioner Maqbool Ahmed Lehri in the illegal and apparently mala fide and dishonest sale of the land is quite obvious. The prosecution has, through the material placed before this Court and discussed above, been able to make out, a prima facie, case of the existence of dishonest intention of personal gain on the part of the petitioner Maqbool Ahmed Lehri. Whereas the said petitioner not only failed to make out a good prima facie ground for grant of bail but has also failed to demonstrate that the reference filed against him has been filed with ulterior motive for causing injury to his reputation, and not for furthering the ends of justice, and is based on false and malicious allegations to victimize, disgrace or dishonour him. 28. There is no question of double jeopardy or violation of the mandate of Article 13(a) of the Constitution in the present case as no reference other than the present one has ever been filed against any one in respect of the subject land/transaction. Indeed investigation in respect of a lease deed executed by the petitioner Maqbool Ahmed Lehri while he was Mayor, MCQ was initiated by CP 51&57/15 19 the NAB authorities, however, as noted above, the same was closed for lack of sufficient evidence as such, as permissible in terms of clause (c) of Section 9 of the NAB Ordinance, which reads as under:- “(c) If after completing the investigation of an offence against a holder of public office or any other person, the Chairman NAB is satisfied that no prima facie case is made out against him and the case may be closed, the Chairman NAB shall refer the matter to a Court for approval and for the release of the accused, if in custody. Neither any reference was filed or pending as a result of such investigation before the Accountability Court nor was the Court thus seized of the matter. In any event, the present reference has been filed in respect of a separate transaction wherein sale deed dated 26.4.2007 has been executed by QDA, after 17 years, of the execution of lease deed dated 06.5.1990, executed by the petitioner Maqbool Ahmed Lehri as Mayor, MCQ. 29. In view of the forgoing, we do not find any justification for interfering with the impugned judgment. Leave is therefore, refused. CPLA No.51 of 2015 stands dismissed. 30. However, the prosecution has failed to place before us any material to demonstrate, prima facie, guilt of petitioner Ali Muhammad Baloch, and has in fact failed to make out a prima facie reasonable case to charge the said petitioner for an offence under section 9 of the NAB Ordinance so that pre-arrest bail may be refused to him. The allegations against petitioner Ali Muhammad Baloch, are that he wrote letters dated 14.11.2003 and 18.9.2004 to Sultan Ahmed and that he bifurcated the land into commercial and residential categories and in fact designated a larger potion thereof as residential. It is also alleged that said petitioner neither confirmed deposit of full value/price of the land before executing the subject sale deed, nor did he advise the Finance Branch for recovery of the balance sale consideration CP 51&57/15 20 amount. As rightly submitted by Mr.Kamran Murtaza, the learned ASC that through the aforesaid two letters, the petitioner Ali Muhammad Baloch neither made any conscious order or decision nor has he otherwise made any order or decision in the matter. On the contrary, through letter dated 14.11.2003, he has in fact informed Sultan Ahmed that the determination of the value of the land falls within the purview of the Governing Body, QDA, and the matter shall be placed before the Governing Body in its meeting, and merely advised him to deposit 5% of the “tentative cost” at the previously agreed rates, so that the matter may be placed before the Governing Body. Whereas through letter dated 18.9.2004, the petitioner Ali Muhammad Baloch has merely conveyed to Sultan Ahmed the decision/order of the Chief Minister of restoring permission to deposit the price of land at the agreed rate and directed him to deposit the amount within three months. The above two letters clearly did not contain any decision or order made by petitioner Ali Muhammad Baloch in the matter, and therefore, he cannot, prima facie, be held responsible for the sale of the land. So far as the bifurcation of the land into commercial and residential is concerned, the same as can be seen from the record before us, was done by Incharge Town Planning, QDA, and no material has been placed before us to show any involvement of the petitioner therein, whereas the balance amount of the sale price has been deposited purportedly by Sultan Ahmed seemingly, before filing of the reference. It is not even alleged that petitioner Ali Muhammad Baloch has, in any way, benefited from the transaction, absolutely no allegation of illegal gratification has been made against him. We, therefore, are of the view that arrest of the petitioner Ali Muhammad Baloch at this stage is not justified and would therefore, convert CPLA No.57 of 2015 into an appeal CP 51&57/15 21 and dispose of the same by confirming the interim bail granted to him by this Court through order dated 30.1.2015. 31. Before parting with the judgment, we may however observe that the observations made hereinbefore are tentative in nature and shall have no bearing on the trial of the case before the Accountability Court. Similarly, the observations made by the learned High Court of Balochistan in the impugned judgment shall also have no bearing on the trial. Judge Judge Judge Islamabad the Announced in open Court on ________ Judge ‘APPROVED FOR REPORTING’

{'id': 'C.P.L.A.51_2015.pdf', 'url': ''}

{'id': 'C.P.L.A.51_2015.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN ( Appellate Jurisdiction ) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ. MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE UMAR ATA BANDIAL CIVIL PETITIONS NO.493, 494, 505 TO 508, 529 TO 532, 533, 601, 906 AND 911 TO 917 OF 2015. (On appeal against the judgment dated 13.3.2015 passed by the Sindh Service Tribunal, Karachi, in Appeals No.130- 134/2014, 2, 237& 238/2015) Gul Hassan Jatoi (CPs.493,494,505&506/15) Abdul Razzak Bugti (CPs.507&508/15) Faqir Muhammad Jatoi (CP.529/15) Masroor Ahmed Jatoi (CP.530/15) Sohrab Ali Meo (CP.531/15) Yar Muhammad Rind (CP.532/15) Lal Bux Solangi (CP.533/15) Abdullah and another (CP.601/15) Province of Sindh thr. (CPs.906 & 911-917/15) Chief Secy. Sindh … Petitioner(s) VERSUS Faqir Muhammad Jatoi (CPs.493,508,911/15) Aijaz Ali Memon & others (CP.494,916/15) Sohrab Ali Meo & others (CP.505, 913/15) Ins. M. Azam Khan (CP.506,601,917/15) Yar Muhammad Rind etc (CP.507,906/15) Province of Sindh & others (CPs.529-532/15) Masroor Ahmed Jatoi etc (CP.912/15) Lal Bux Solongi etc (CP.914/15) Rafique Ahmed Abbasi (CP.915/15) … Respondent(s) For the Petitioners : Mr. Shahid Anwar Bajwa, ASC (in CPs.493, 494, 505-506, Mr. Zulfiqar Khalid Maluka, ASC 906 & 911-917/15) Mr. M. Munir Peracha, ASC Syed Iftikhar Hussain Gillani, Sr. ASC Syed Rafaqat Hussain Shah, AOR For the Respondents : Mr. M. M. Aqil Awan, ASC (1-4) in CP.494/15 (1-22) in CP.506/15 For Govt. of Sindh : Mr. Abdul Fateh Malik, AG Sindh, Mr. Adnan Karim, Addl. AG Sindh Ghulam Ali Barhman, Addl. Secy (Services) 2 Dr. Amin Yousafzai, DIG Naeem Ahmed Shaikh, AIG (Establishment) Dr. Mazhar Ali Shah, AIG (Legal) Aman Ullah Zardai, Focal Person, HD Others Respondents : Not represented. (in all cases) Date of hearing : 29-10-2015, 3-11-2015 & 4-11-2015 Judgment AMIR HANI MUSLIM, J.- These Petitions for leave to Appeal are directed against judgment dated 13.3.2005, of the Sindh Service Tribunal, Karachi, whereby 08 Service Appeals filed by the Petitioners/Respondents were disposed of, vide impugned judgment in the following terms:- i. Sindh Reserve Police and all other branches of Police Force such as Rapid Respondent Force (RRF), Sindh Reserve Police (SRP), Prosecution Branch, Telecommunication Branch, Female Police, Special Branch (Crime Branch) are separate cadres other than the District Police/Regular Police, although all of them are one Police Force which is an attached department of the Home Department under the Sindh Government Rules of Business, 1986 and Inspector General of Police is head of attached department. ii. Since all branches of Police Force are assigned with different and separate functions they are different cadres, therefore, the Provincial Government shall frame recruitment rules and the terms and conditions of their service separately for each cadre, except for those cadres in respect of which separate rules are already there such as Women Police and Prosecution Branch etc. iii. After framing of rules pertaining to recruitment and other terms and conditions of service as required 3 under section 2 of Police Act 1861, separate seniority list of each cadre and in each scale/rank shall be issued as required under rule 9 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 wherein it is provided that in each cadre in a department there shall be a separate seniority list of a group of civil servants doing similar duties and performing similar functions and for whose appointment same qualifications and experience have been laid down. iv. There is no provision in law for transfer of officers/officials from one cadre to another cadre, therefore, all the transfers made from Sindh Reserve Police to District Police in violation of law and in pursuance of various Standing Orders are hereby nullified and all such officers are directed to be repatriated to their parent branch i.e. Sindh Reserve Police. v. All the Standing Orders issued from time to time by different Inspector Generals of Police/Provincial Police Officers without approval of Provincial Government are declared to be illegal and void to the extent of prescribing the recruitment rules, terms and conditions of service of the officers/men in Sindh Reserve Police including devising of transfer policy and pertaining to the assignment of seniority in violation of rules. vi. The Inspector General of Police Sindh is directed not to issue any Standing Order under section 12 of the Police Act, 1861 without approval of Provincial Government and even with the approval of Provincial Government no orders can be issued by Inspector General of Police pertaining to the recruitment and terms and conditions of service of the members of the Police Force in different branches and cadre, as such powers can be exercised by Provincial Government only by virtue of section 2 of Police Act, 1861. 4 vii. The Inspector General of Police Sindh is directed to ensure that all the training courses prescribed in the Police Rules 1934, are duly imparted and the rules pertaining to the maintaining of various promotion lists are observed and the seniority lists are prepared strictly in accordance with the provisions contained in Police Rules, 1934, after due observation of Police Rules, by the District Superintendents of Police, Deputy Inspector Generals and the Inspector General himself. It is further directed that promotion list ‘E’ shall be published in Police Gazette as required under rule 13.11. viii. The Inspector General of Police is further directed to ensure that no officiating promotion shall be made as a matter of normal course and such orders shall be made strictly in accordance with the Police Rules and merely for the purpose of deciding fitness and ability of officers concerned. ix. The Inspector General of Police is further directed to ensure that no officer is confirmed in any rank while serving in officiating capacity, without promotion in the substantive rank. x. The Inspector General of Police Sindh is further directed to ensure that no antedated confirmations and promotions shall be made and the dates of confirmations and promotions shall not be revised by any officer or Committee of the officers. xi. The impugned seniority list dated 7.2.2014, is set aside and no promotion shall be made on the basis thereof. The officers who were transferred from Sindh Reserve Police to Regular Police shall be promoted on preparation of their seniority list in SRP, after framing of rules by the Provincial Government in respect of Sindh Reserve Police Fresh seniority list shall be prepared for the District Police, Initially provisional and after filing of objections the final seniority list and thereafter the promotion in the rank of Deputy Superintendent of 5 Police shall be considered by Departmental Promotion Committee. xii. The Provincial Government is further directed to provide reasonable quotas of promotion for each branch of Police Force/Cadre in accordance with their strength. In this behalf the direction of Supreme Court of India in the case of Raghunath Parsad Sing vs. Secretary Home (Police) Department, Government Bihar, 1989 MLD 2153, should be kept in view. It has been directed by the Supreme Court of India that “reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly.” 2. Originally, Petitioners Messrs Faqir Muhammad Jatoi, Masroor Ahmad Jatoi, Sohrab Ali Meo, Lal Bux Solangi, Yar Muhammad Rind filed Service Appeals before the Tribunal, impugning the final seniority list dated 07.02.2014. Rafiq Ahmed Abbasi Respondent No.1 in Civil Petition No.915 of 2015 was also one of the Appellants before the Sindh Service Appeal. 3. Inspectors Ijaz Ali Memon and Muhammad Azam Khan also filed Appeals before the Tribunal, being aggrieved of the transfer of personnel of the Sindh Reserve Police to the Regular Police Force, due to which their seniority was adversely affected. They also impugned the seniority list dated 07.02.2014. They prayed that the Sindh Reserve Police be declared as a separate cadre. 6 4. Brief facts of the case of each of the Petitioners who filed Appeals before the Sindh Service Tribunal are as under:- C.P.No.529 of 2015. Faqir Muhammad Jatoi vs. Province of Sindh 5. On 1.1.1987, the Petitioner was appointed as Assistant Sub-Inspector in the Sindh Reserve Police, through competitive process. On 25.5.1989, he was promoted to the rank of Sub-Inspector and then promoted as Inspector vide order dated 20.9.2004 w.e.f 12.1.1998. On 30.6.2006, the Inspector General of Police, Sindh, issued a tentative seniority list of Inspectors of Sindh Police, whereafter, on 20.12.2008 another tentative seniority list of Inspector was issued by the Inspector General of Police, Sindh. This list was withdrawn and a revised seniority list was issued on 20.1.2009. On 20.4.2010, yet another seniority list was issued and the Petitioner was placed at serial No.403 of the said list. The Petitioner raised objections to the said tentative seniority list, which were never responded to. On 23.10.2013, without finalizing the tentative seniority list issued on 20.4.2010, yet another tentative seniority list was issued wherein the Petitioner was placed at serial No.254. Ultimately, a final seniority list was issued on 7.2.2014, on the basis of which a meeting of the Departmental Promotion Committee was convened and more than 80 Inspectors were promoted to the rank of the Deputy Superintendent of Police. The Petitioner filed a departmental Appeal, which was not decided within the statutory period, therefore, he preferred a Service Appeal before the Sindh Service Tribunal, challenging the seniority list dated 7.2.2014 with the prayer to assign 7 him proper seniority. The Appeal of the Petitioner was disposed of, vide impugned judgment. C.P.No.530 of 2015. Masroor Ahmed Jatoi vs. Province of Sindh. 6. On 1.1.1987, the Petitioner was appointed as Assistant Sub-Inspector in the Sindh Reserve Police after qualifying the requisite examination. On 25.1.1990, he was promoted as Sub- Inspector and on 8.7.1998, he was promoted as Inspector. On his representation, the Petitioner was allowed inter se seniority with his batch-mates w.e.f. 11.1.1996, and he was confirmed as Inspector w.e.f 11.1.1996, vide order dated 20.9.2004. On 22.9.2005, the Petitioner was promoted as Deputy Superintendent of Police out of turn on gallantry basis and was relegated to the post of Inspector in the advent of judgment of this Court in the year 2013. 7. Two or three seniority lists were issued in the interregnum, whereafter on 7.2.2014, a final seniority list was issued on the basis of which more than 80 Inspectors were promoted as Deputy Superintendents of Police. After exhausting the departmental remedy, ultimately, the Petitioner filed an Appeal before the Sindh Service Tribunal, challenging the final seniority list dated 7.2.2014, which was disposed of by the impugned judgment. Civil Petition No.531 of 2015. Sohrab Ali Mao vs. Province of Sindh 8. On 1.1.1987, the Petitioner was appointed as Assistant Sub-Inspector in the Sindh Reserve Police, through competitive 8 process. On 22.5.1989, he was promoted as Sub-Inspector and on 8.7.1998, was further promoted as Inspector. On his representation, the Petitioner was allowed inter se seniority with his batch-mates w.e.f. 11.1.1996, and was confirmed as Inspector w.e.f 11.1.1996, vide order dated 20.9.2004, a series of tentative seniority lists of Inspectors were issued and, lastly, on 7.2.2014, a final seniority list of Inspectors was issued on the basis of which 80 Inspectors were promoted as Deputy Superintendents of Police. The Petitioner challenged the said seniority list before the Sindh Service Tribunal, by filing an Appeal, which was disposed of by the impugned judgment. Civil Petition No.532 of 2015. Yar Muhammad Rind vs. Province of Sindh and others. 9. On 1.1.1987, the Petitioner was appointed as Assistant Sub-Inspector in the Sindh Reserve Police, through competitive process. On 25.1.1990, he was promoted as Sub-Inspector and on 8.7.1998, he was further promoted as Inspector. On 8.7.2000, he was confirmed as Inspector, on acceptance of his representation, whereby, he was allowed seniority with his batch-mates w.e.f. 11.1.1996. Many seniority lists were issued in the intervening period and ultimately on 7.2.2014, a final seniority list of Inspectors was issued on the basis of which more than 80 Inspectors were promoted as Deputy Superintendents of Police. The Petitioner challenged the final seniority list dated 7.2.2014, by way of an Appeal before the Sindh Service Tribunal, which was disposed of by the impugned judgment. 9 Civil Petition No.533 of 2015. Lal Bux Solangi vs. Province of Sindh 10. On 1.1.1987, the Petitioner was appointed as Assistant Sub-Inspector in the Sindh Reserve Police, through competitive process. On 22.5.1989, he was promoted to the rank of Sub-Inspector and on 8.7.1998 was further promoted as Inspector. On his representation to the Competent Authority, the Petitioner was allowed seniority with his batch-mates w.e.f 11.1.1996 and was confirmed as Inspector w.e.f 12.1.1998, vide order dated 20.9.2004. 11. After a series of tentative seniority lists, on 7.2.2014, a final seniority list was issued, on the basis of which more than 80 Inspectors were promoted as Deputy Superintendents of Police. The Petitioner challenged the said seniority list by filing a Service Appeal before the Sindh Service Tribunal, which was disposed of by the impugned judgment. Civil Petition No.494 of 2015 Gul Hassan Jatoi vs. Aijaz Ali Memon and others 12. On 1.1.1987, the Petitioner was appointed as Assistant Sub-Inspector in the Sindh Reserve Police and on 8.7.1989, he was promoted as Sub-Inspector on officiating basis. On 20.9.2004, he was confirmed as Sub-Inspector. He was finally promoted as Deputy Superintendent of Police, vide Notification dated 24.3.2014. He was one of the Respondents before the Sindh Service Tribunal, in Service Appeals filed by the Petitioners Faqir Muhammad Jatoi and others, which were disposed of by the Tribunal, vide impugned judgment. 10 Civil Petition No.507 of 2015. Abdul Razzak Bugti vs. Yar Muhammad Rind 13. On 1.1.1987, the Petitioner was appointed as Assistant Sub-Inspector in the Sindh Reserve Police. On 25.5.1989, he was promoted as Sub-Inspector and transferred to the District Police. In the year 2001, he was promoted as Inspector. His name was included in the seniority list of Inspectors dated 7.2.2014, which was forwarded to the Home Department. On 25.1.2015, a meeting of the DPC was convened in which 155 Inspectors were considered for promotion, however, they were not notified due to restraining orders passed by the Service Tribunal in Service Appeal 134 of 2014 filed by Lal Bux Solangi. He was one of the Respondents in the Service Appeals filed by Faqir Muhammad Jatoi and others, which were disposed of by the Tribunal, vide impugned judgment. Civil Petitions No.906 & 911 to 917 of 2015. Government of Sindh vs. Yar Muhammad Rind and others. 14. The Government of Sindh has filed the above-said Petitions against the impugned judgment, pleading that the Respondents in the Petitions were appointed as A.S.I in the Sindh Reserve Police on various dates. After issuance of the provisional seniority lists of the Respondents, objections were called and upon receipt of the objections, a Committee was constituted to finalize the seniority list, which was issued on 07.02.2014. It has been further pleaded that on 20th September, 1972, an order was issued by the Sindh Government, creating vacancies for a Special Striking Force in 11 the Sindh Police, which has been wrongly construed as a special cadre; that in the aftermath of separation of East Pakistan, language riots disrupted in the Province Sindh and certain other parts of the country, due to which it was deemed necessary to have Police Force available to supplement the existing Police Force in Police Stations and Districts in the advent of dire need. This force was created for three months but the same continued thereafter; that vide notification dated 11.07.1973, the nomenclature of the Special Striking Force was changed to the Sindh Constabulary and designations of the officers of the Force were also changed. In the said notification it was further provided:- “The force shall be administered as one provincial reserve and its disposition will be decided by the I.G.P from time to time according to necessity. The Force shall be administered as a part of the Police Force and provisions of Police Act, the Police Rules and other relevant law shall apply. The officers of this constabulary shall exercise such powers of command, control, punishment and appeals etc. are exercisable by the officers of equivalent rank.” 15. It has been further pleaded that, thereafter, a Provincial Armed Reserve (PAR) was also created, which was subsequently merged in the Sindh Constabulary; that finally on 30.04.1985, the Sindh Constabulary and Anti-Dacoit Force was re-designated as the Sindh Reserve Police and designations of the officers of the force were also changed; that thereafter various administrative and standing orders were issued by the Inspector General of Police and concerned 12 Deputy Inspector Generals of Police, without approval of the Sindh Government, which were merely administrative orders, for efficient organization and guidance of the officers; that during the years 1984 to 1987, all appointments were made in the Sindh Reserve Police and no appointment was made in the Districts, due to administrative reasons and after the year 1987, no new recruitment had taken place in the Sindh Reserve Police; that Assistant Sub-Inspectors and Constables were recruited, from time to time and assigned to work in the Sindh Reserve Police, which arrangement was also adopted in the Province of Punjab; that the Respondents claiming seniority filed Appeals before the Sindh Service Tribunal, which were disposed of vide impugned judgment. 16. The Appellants before the Tribunal have filed Civil Petitions No.529, 530, 531, 532, 533 of 2015, against the impugned judgment. One of the Petitioners in Civil Petitions No.493, 494, 505 and 506 of 2015, is Gul Hassan Jatoi, who was one of the Respondents before the Tribunal. Civil Petitions No.507 and 508 were filed by Abdul Razzaq Bugti, who was also Respondent before the Tribunal. Civil Petition No.601 of 2015 is filed by Abdullah, against the impugned judgment. The Province of Sindh has challenged the impugned judgment of the Sindh Service Tribunal, before this Court in Civil Petitions No.906 and 911 to 917 of 2015. 17. The learned ASC Shahid Anwar Bajwa, Counsel for the Inspector General of Police, Sindh, and for the Petitioner Gul Hassan Jatoi in C.P.L.A. Nos. 493, 494, 505 and 506 of 2015, has contended 13 that the Police Order 2002 was repealed through the Sindh (Repeal of the Police Order 2002 and Revival of the Police Act 1861) 2011 and it was the Police Act of 1861 which is currently in force. He made reference to various provisions of the Police Act 1861. He stated that under Section 2 of the Police Act, 1861, the entire Police Establishment shall be one force; whereas, Section 4 of the Act provides that the Inspector General of Police is the Administrator of the Police force, Section 5 defines the powers of the Inspector General of Police and Section 12 empowers the Inspector General of Police to frame rules and pass orders, subject to approval of the Provincial Government. 18. The learned ASC Mr. Bajwa has contended that Rule 12 of Chapter XII of the Police Rules 1934, deals with the appointments and enrolments in the Police Force. Rule 12.1 deals with the general recruitment, Rule 12.3 relates to recruitment to the Prosecution service and Rule 12.3(B) pertains to appointment in Technical service. He further submits that Rules 17 Chapter XVII of the Police Rules pertains to the Reserve Police. The Sub Rules of Rule 17 provide permanent reserve, a second reserve mobilized under the orders of Inspector General of Police, and a third reserve mobilized on the orders of the Government. He has further contended that there was no order by the Provincial Government creating the Sindh Reserve Police as a separate cadre. He then relied upon Rules 13.18 and 12.3 contending that these rules are relevant with reference to determining the seniority of the Police Personnels. 14 19. The learned Counsel contended that Rule 9(4) of the Fundamental Rules 1922 and Rule 9 of the Sindh Civil Service Rules 1950, define “Cadre”. In support of his submission that the Sindh Reserve Police is not a separate cadre, Mr. Bajwa placed reliance on Muhammad Bachal Memon and others vs. Syed Tanveer Hussain Shah and others (2014 SCMR 1539), PIAC thr. its Chairman and others vs. Samina Masood and others (PLD 2005 SC 831) (Para 11), Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore vs. Dr. Naeem Akhtar and five others (PLD 1997 SC) 382 (Para 11, pg.90). He submitted that other provinces are treating their Reserve Police as part of their regular police and in support of the aforesaid contention he has relied upon Sardar Khursheedul Hassan vs. IGP and others 1991 PLC (C.S.) 208, Muhammad Ali Qureshi and 18 others vs. Secretary, Home Department, Govt. of Punjab, Lahore and others 1994 PLC (C.S.) 449. He states that in light of the law laid down by this Court in the case of Tariq Azizuddin and others, (2010 SCMR 1301), every employee ought to be considered for promotion, subject to the Rules. He submitted that wings created in the Police Force by the Inspector General of Police under Section 12 of the Police Act 1861, with the sole purpose of improving the efficiency of the Police Force as a whole. 20. The learned ASC Mr. Bajwa submitted that C.P.L.A Nos. 916 to 917 of 2015 and 454 and 506 of 2015 also arise out of the impugned judgment of the Tribunal. He states that the Respondents Aijaz Ali Memon and Muhammad Azam Khan had originally filed 15 Writ Petitions before the Sindh High Court, which were later transferred / converted as appeals before the Sindh Service Tribunal at Karachi and disposed of. The contention in the said service appeals, which were originally Writ Petitions, was that the Sindh Reserve Police was a different cadre. He submitted that on the other hand, C.P.L.A Nos. 906, 911 to 914, 493 and 505 of 2015, pertain to persons who were recruited in the Sindh Reserve Police along with other Private Respondents. He drew our attention to para 4, at pg. 80 of the impugned judgment (Pg.102 of C.P.L.A. No.493/2015) to press the point that one of the Appellants before the Tribunal, namely Yar Muhammad Rind, was unable to show from the record, as to when he was confirmed or promoted and that the onus lay on him to prove his own case. 21. The learned ASC Mr. Bajwa, then drew our attention to pg.216 of C.P.L.A. No.493 of 2015, submitting that one of the Appellants before the Tribunal namely Lal Bux Solangi filed an application to withdraw his Appeal, which was not decided. He states that under Rule 1, Order 23 of the Code of Civil Procedure, 1908, if a party applies for withdrawal of its Appeal, it ought to have been accepted. Mr Bajwa contended that it was only Lal Bux Solangi who had filed an Application for grant of interim injunction, which was granted by the Tribunal and, as such, if his Application to withdraw the Appeal was decided, the stay granted on his Application in Appeal would automatically stand vacated on withdrawal of his Appeal. 16 22. Mr. Bajwa further contended that Rafique Ahmed Abbasi (one of the Appellants before the Service Tribunal and the Respondent in C.P.L.A. No.915 / 2015) had no service record at all. 23. The learned Advocate General Sindh, Mr. Abdul Fateh Malik, commenced his arguments by responding to one of our queries as to how many Ranges were there in the Sindh Police. He has referred to Rule 1.3 of the Police Rules 1934 and states that each District under the Police Rules is divided into an administrative establishment. He states that Rule 1.4 of the Police Rules 1934, pertains to Ranges and further relied upon Rule 2.1 of the said Rules. He submitted that Rule 1.3 of the Police Rules 1934, was amended on 22.08.1998, vide notification issued by the Government of Sindh, under Section 46 of the Police Act 1861. 24. The learned Advocate General submitted that by virtue of Section 2 of the Police Act 1861, the entire police establishment was one force and to substantiate his contention relied upon Rule 1.5 of the Police Rules 1934. He then read out Rule 17.9 of the Police Rules 1934, contending that the Rule pertains to the First Armed Reserve. He, with some noticeable hesitation, stated that there were in all 5 Ranges in the Sindh Police. He conceded that Standing Orders issued by the Inspector General of Police at times were without prior sanction of the Government. 25. One of us (Amir Hani Muslim, J) inquired from the learned Advocate General Sindh, that if the Police, as per his own contentions, was one force, then why was the seniority of a police 17 officer disturbed upon his transfer from one Range to another? In response, the learned Advocate General Sindh, very candidly conceded that the issue of seniority in the aforesaid situation is something that needs to be attended to. On further enquiry as to how seniority of a Police Officer on transfer is affected, the Advocate General Sindh has relied upon Rule 12.2 of the Police Rules 1934. 26. The Advocate General was asked to pin point the Police Rule under which an Officer’s seniority on his transfer from one District to another District or from one Range to another Range is required to be placed at the bottom of the seniority list maintained by the District or the Range to which he is transferred. At this juncture, a representative of the Home Department Sindh intervened and submitted that, although there was no provision in the Police Rules 1934, which provides for placing the seniority of a Police Personnel at the bottom on his transfer to another District or Range, recourse in this respect could be made to the Civil Servant Seniority Rules 1975, which do provide such mechanism. The Advocate General Sindh, however, unequivocally submitted that there should be one seniority list. The Advocate General Sindh further contended that there are a large number of cases where officers were not confirmed after lapse of 2 years. 27. The learned Advocate General Sindh, concluded his arguments by submitting that the learned tribunal erred in law in holding (at para 72(i) of the impugned judgment) that all branches of the Police are separate cadres and contended that it was only the 18 Prosecution Branch, the Telecom Branch and the Female Police which could be categorized separately as cadres and prayed that the said finding of the Tribunal should be set aside. He further submitted that para 72 (ii) of the impugned judgment may also be set aside. The learned Advocate General Sindh placed reliance on the case reported as IGP, Punjab, Lahore and others vs. Mushtaq Ahmed Warraich and others (PLD 1985 SC 159) (Pg.161) and Muhammad Nadeem Arif and others vs. IGP, Punjab, Lahore and others (2011 SCMR 408) (Pg.415). 28. In regard to the confirmation of Police Officers, Mr. Naeem Sheikh, AIG (Establishment) Sindh Police, contended that under Rule 12.8 of the Police Rules 1934, the probation period for persons appointed directly as Assistant Sub-Inspectors was 3 years whereas, under Rule 13.18 period of probation of a Assistant Sub- Inspector appointed by promotion was 2 years. He submitted that there was wisdom in the said Rule, as someone who had been promoted to the post of Assistant Sub-Inspector, would naturally have accumulated more experience than compared to persons directly appointed as Assistant Sub-Inspectors and as such the probation period for directly appointed Assistant Sub-Inspectors should in principle be longer. The AIG (Establishment) states that the probation period provided in the Police Rules is followed. The AIG further stated that all cases with respect to seniority etc. should be reverted back to the date of appointment. He concluded by stating 19 that Rule 1.3 to 1.6 of the Police Rules 1934, should be implemented in letter and spirit. 29. On a query of the Court as to whether there was any training or examinations prescribed for persons appointed in the Sindh Reserve Police, Mr. Naeem Sheikh, AIG (Establishment) Sindh Police, apprised us that under Rule 19.25 of the Police Rules, 1934, persons appointed to the Regular Police were required to undergo training for a period of one year at Police Training School and 2 years of practical training. However, he frankly conceded that none of these requirements were complied with for the induction of persons to the Sindh Reserve Police, as the same was not an investigative force. He however, submitted that when the Sindh Reserve Police was transferred to the districts, it became apparent that they were not adequately trained and as a consequence thereof, Standing Order No.125 of 1994, was issued mandating certain training courses for persons belonging to the Sindh Reserve Police. He further made an unequivocal statement that all officers appointed to the Sindh Reserve Police, subsequent to 1994, have undergone the requisite training courses and as of today, the training for induction into both the Sindh Reserve Police and the Regular Police is similar. 30. At the very outset, Mr. Iftikhar Gillani, Counsel for the Petitioner in C.P.No.601 of 2015, stated that his client was not a party to the proceeding before the Tribunal but was adversely affected by the impugned judgment and has therefore filed the instant Petition. He 20 contended that his arguments would be confined to whether the Tribunal was vested with the jurisdiction to dispose of the Service Appeals in the manner it has done so. 31. He contended that Section 5 of the Sindh Service Tribunal Act and Section 5 of the Federal Service Tribunal Act 1973, are in Pari Materia and the said provision is to be read in conjunction with Article 175(2) of the Constitution. He contended that directions of the nature, which had been given by the Tribunal in the impugned judgment, may only be given by the Honorable Superior Courts whilst exercising their Constitutional Jurisdiction under Article 184(3) and 199 of the Constitution. He further submitted that the Tribunal can only give directions in personam and not directions in rem and that the Tribunal has gone beyond its jurisdiction and given directions which only this Court can give under Article 187 of the Constitution i.e. directions which are not prayed for. 32. He submitted that even the Honorable High Courts cannot give directions which are not prayed for but, on the contrary, may only mould the relief. Mr. Iftikhar Hussain Gillani, learned Senior ASC contended that the Tribunal has proceeded to do complete justice, a power that is only vested with this Court under Article 187 of the Constitution. In support of his submissions, he placed reliance on the case reported as Dossani Travels Pvt. Ltd and others Vs. M/s Travels Shop Pvt Ltd. and others (PLD 2014 SC 1) (Para 4, Pg.39). 21 33. Mr. Iftikhar Hussain Gillani, learned Senior ASC, in rebuttal to Mr. Aqil Awan’s submission that, by virtue of Article 212 of the Constitution, the Tribunal was vested with powers much wider in scope than those exercised by the Superior Courts of this Country, submitted that this might be true, but only with respect to an individual and not to entire cadre or Police Force. 34. Mr. Zulfikar Khalid Maluka, learned ASC for the Petitioner in C.P.Nos.507 to 508 of 2015, submitted that he adopts the arguments of Mr. Iftikhar Hussain Gillani, learned Senior ASC for the Petitioner in C.P.No.601 of 2015. 35. Mr. Muhammad Munir Paracha, learned ASC for the Petitioners in C.P. Nos.529 to 533 of 2015, contended that the learned Tribunal had erred by holding that Sindh Reserve Police was a different cadre. He submitted that Section 2 of the Police Act 1861, was clear that the entire Police Establishment shall deemed to be one force. With reference to seniority, he contended that Range wise seniority was clearly creating problems. 36. Mr. M. M. Aqil Awan, learned ASC for the Respondents in C.P.Nos.494 and 506 of 2015, contended that there were two issues before the Tribunal. The first issue was whether the Sindh Reserve Police was a separate cadre, which the Tribunal answered in the affirmative by holding that it was a separate cadre. The second issue before the Tribunal, was whether the standing orders issued by the Inspector General of Police, Sindh, were legal or not. On this count, 22 the Tribunal was of the view that they were illegal. The learned Counsel submitted that there was no dispute with respect to the legality of the Standing Orders and it was agreed that they were illegal, therefore, the only point that remained to be answered was whether the Sindh Reserve Police was a separate cadre or not. 37. Mr. M. M. Aqil Awan, learned ASC, contended that persons ranging from Head Constable to the level of Inspector fell within the category of Upper Subordinates and that the seniority for such Upper Subordinates was to be maintained under Rule 12.2(3) of the Police Rules 1934. In support of his submissions, he placed reliance on IGP, Punjab, Lahore and others vs. Mushtaq Ahmed Warraich and others (PLD 1985 SC 159) (Pg.177) and Neimat Ali Goraya and others vs. Jaffar Abbas, Inspector/Sergeant Traffic etc (1996 SCMR 826). He submitted that the prevalent practice was that the tentative seniority list was being made the basis of promotion. 38. With respect to the Sindh Reserve Police being a separate cadre, Mr. M. M. Aqil Awan, learned ASC, contended that the Sindh Reserve Police maintained a different seniority list, which indicates that it is a separate cadre. He further contended that absorption does not take place within the same cadre and as such, the fact that persons are absorbed into the Regular Police from the Sindh Reserve Police, in itself implies that the Sindh Reserve Police is a separate cadre. He contended that the Inspector General of Police has referred to the Sindh Reserve Police as a separate cadre in his Standing Orders, in addition to it being consistently treated as a separate cadre at the 23 departmental level. In this behalf he drew our attention to para 46 of the impugned judgment. 39. To an observation of this Court that the Police should have a centralized seniority mechanism in place, Mr. M.M.Aqil Awan, ASC, submitted that the duration of training and courses for persons inducted and appointed to the Sindh Reserve Police and the Regular Police are different. The Regular / District Police is required to complete courses A, B and C as prescribed under Rule 19.25 of the Police Rules 1934, and there is no such requirement for the Sindh Reserve Police. The learned Counsel further submitted that although under Section 2 of the Police Act 1861, the Police Establishment is one Police Force, the IT, Prosecution and Women Branch are different cadres, each having their own recruitment rules within that one Police Force. The factum of there being multiple cadres within one Police Force is not a departure from Section 2 of the Police Act 1861. 40. In order to draw a distinction between a wing of the Police and a cadre, Mr. M.M.Aqil Awan, ASC, stated that Traffic Police and the Anti Terrorist Squad were wings of the Police and they shared the same seniority list with the Regular Police and as such were part of the same. He submitted that the Sindh Reserve Police, on the contrary, maintained its own seniority list and therefore this was further proof of its being a separate cadre and not a wing of the Regular Police. 24 41. Mr. M.M. Aqil Awan, learned ASC for the Respondents, submitted that all the irregularities in the preparation of the seniority list by the Police are brought to light upon a reading of paras’ 41 to 45 of the impugned judgment and that these findings have not been controverted either before the Tribunal or before this Court. He submitted that the Inspector General of Police has unbridled and blind powers. He contended that it was the Inspector General of Police who sanctioned horizontal movement and it was he, who made wings within the Police. He further submitted that, if there was a clog or fetter on the unbridled powers of the Inspector General of Police, it was under Section 12 of the Police Act 1861, which mandates the prior approval of the Provincial Government. In this behalf Mr. M. M. Aqil Awan, learned ASC placed reliance on Khalil-ur-Rehman Khan, D.S.P. and others Vs. Province of Punjab through Home Secretary and others (PLD 1985 SC 195) at pg.204. He stated that the aforesaid judicial pronouncement has laid down the scope of Section 12 of the Police Act 1861, and the same has been continuously violated by the Inspector General of Police. He submitted that it was the Inspector General of Police who made the Sindh Reserve Police and it was he, who had been transferring Assistant Sub-Inspectors back and forth. The learned Counsel submitted that the question that begged to be answered was how the continuous violation of Section 12 of the Police Act 1861, may be stopped. He stated that one way to stop the said violation had been laid down by the Tribunal through the impugned judgment. 25 42. Mr. M. M. Aqil Awan, learned ASC submitted that the Tribunal while deciding the Appeals pending before it had not ignored Section 2 of the Police Act 1861. He stated that Section 2 of the Act does not stipulate that there shall be one cadre, but that there shall be one Police Force. His contention was that Section 2 of the Act was to be read with Rule 1.3 of the Police Rules 1934, and it was through this Rule that cadres had been created. He further contended that the word “Cadre” and “Administrative Unit” have not been defined, either in the Police Act 1861, or in the Police Rules 1934. He submitted that if the Police Rules were silent on a subject, the Civil Service Laws would hold the field, as long as the latter were not inconsistent with the former. Mr. M. M. Aqil Awan, learned ASC, submitted that “Cadre” has been defined under Rule 9(4) of the Fundamental Rules 1922, as well as under Rule 9(8) of the Sindh Civil Services Rules 1950, with the latter definition also having been adopted by the Tribunal in the impugned judgment. He placed reliance on a recent judgment of this Court, reported as Muhammad Bachal Memon and others vs. Syed Tanveer Hussain Shah and others (2014 SCMR 1539) (Pg.1549) wherein “Cadre” has been defined and submitted that on the touchstone of the aforesaid judgment, the said definition would also apply to the Police Act 1861, and the Police Rules 1934. 43. The learned ASC, further contended that ipso facto, the Police Rules 1934, did not apply to the Sindh Reserve Police, as it came into being through a Standing Order issued in 1970. He submitted that persons appointed to the Sindh Reserve Police had 26 undergone only a year of training which was in clear contravention of Rule 12.8 of the Police Rules 1934. He, with great force and fervor, contended that the Sindh Reserve Police cannot be a part of the Regular Police Force as it had not seen the rigors of Rule 12.8 of the Police Rules 1934. With reference to confirmation, Mr. M. M. Aqil Awan, learned ASC, contended that Rule 19.25 had to be read with Rule 13.18 of the Police Rules 1934. He next contended that the Inspector General of Police’s unfettered powers ought to be curtailed with respect to transfers and the creation of wings etc. He submitted that one way of achieving the aforesaid objectives is that recruitment rules should be made, thereby channelizing the Inspector General of Police’s unbridled powers. He submitted that even otherwise, the Inspector General of Police cannot alter the conditions of service of persons in the Police Force. He submitted that, on the touchstone of Article 240(b) of the Constitution, the same was within the sole competence and exclusive domain of the provincial legislature. 44. Replying to the arguments of Mr. Iftikhar Hussain Gillani, learned Senior ASC for the Petitioner in C.P.No.601 of 2015, on the question of the jurisdiction of the Tribunal to issue directions as it had whilst disposing of the Appeals, Mr. M. M. Aqil Awan submitted that by virtue of Article 212 of the Constitution there was a bar on the High Court, and on this Court as well, to issue directions of the like that can be issued by the Service Tribunal. He submitted that the Tribunals powers, whilst adjudicating upon a lis before it, were wide ranging in scope and in support of his submission he relied upon 27 Pakistan Railways thr. its GM Vs. Ghulam Rasul (1997 SCMR 1581) (1587) and Ali Muhammad Vs. Commissioner Afghan Refuges NWFP etc (1995 SCMR 1675). Mr. M. M. Aqil Awan, learned ASC concluded his arguments by submitting that, on the question of the Sindh Reserve Police being a different cadre than the Regular Police Force, the Tribunal dealt with the said question in a comprehensive manner and referred to paras’ 52 to 53, 56, 64, 66 and 68 of the impugned judgment. 45. We have heard the learned Counsel for the Appellants, the learned Advocate General, Sindh, and the Counsels representing the Respondents at length and with their assistance have perused the record. 46. Before we could travel into the scheme of the Police Act and the Rules framed thereunder, it has been conceded by the learned Advocate General, Sindh, that the Standing Orders issued at times by the different I.G Police were without the approval of the Provincial Government and, therefore, did not have any legal status. In view of this conceding statement of the Advocate General, no argument was advanced by either party to the validity or otherwise of the Standing Orders issued by the I.Gs Police at times. 47. On the examination of the scheme of the Police Act 1861, we have noticed that Section 2 of the Police Act speaks of the constitution of the police force. Section 2 is reproduced hereunder:- 28 “The entire police establishment under a Provincial Government shall, for the purposes of this Act, be deemed to be one police force and shall be formally enrolled and shall consist of such number of officers and men, and shall be constituted in such manner, as shall from time to time be ordered by the Provincial Government.” Section 3 confers powers on the Provincial Government to supersede or control any police functionary. Section 4 confers powers upon the Inspector General of Police as its administrative head. Section 7 speaks of appointments within the police force. Section 12 confers powers on the I.G.P to frame such orders and rules from time to time, subject to the approval of the Provincial Government, relative to the organization, classification and distribution of the police force, the places at which the members of the force shall reside, and the particular services to be performed by them. 48. On scanning the Police Rules, 1934, we have noticed that Chapter-I of the Rules relates to departmental organization of the police. Rule 1.1 defines General Police District with further clarification that all ranks of police employed in the province are appointed or enrolled under section 2 of the Act. Rule 1.2 confers powers on the I.G.P which are in the nature of command, discipline and administration. Rule 1.3 defines General Police District Division, which provides the structure of the Sindh Police categorized in different establishments:- i. Training Schools (including Provincial Finger Print Bureau) ii. Special Branch. 29 iii. Crimes Branch. iv. District Police. v. Reserve Police Establishment (inserted through Government notification dated 22.09.1998, by amending the Rules). 49. Rule 1.4 defines the administration of the aforesaid establishments. a. The district of the province as grouped in range headed by the Officer of the rank of Deputy Inspector General of Police. b. The affairs of Police Training Centre, Sihala, initially was headed by the Officer of the rank of the Deputy Inspector General of Police. In Sindh subsequently different Police Training Centers were established, which now are under the command of Deputy Inspector General of Police Training Branch. c. Crime Branch is headed by the officer of the rank of Deputy Inspector General of Police. d. Special Branch is headed by the officer of the rank of Deputy Inspector General of Police. e. The reserve police establishment now styled as Sindh Reserve Police is headed by Deputy Inspector General of Police. 50. Rule 1.5 prescribes the limits of jurisdiction and liability to transfer, which for the sake of convenience is reproduced hereunder:- “All police officers appointed or enrolled in Pakistan general police district constitute one police force and are liable to, and legally empowered for, police duty anywhere within the province. No sub-division of the force territorially or by classes, such as mounted and foot police, affects this principle.” 51. Rule 1.6 defines the administration and functions of D.I.G Police appointed in different establishments specified in Rule 1.3, which is reproduced hereunder:- 30 “Deputy Inspectors-General—Duties and functions of.- The Deputy Inspector-General of Police Crime, Special Branch and Crime Branch and Special Branch. The Deputy Inspector-General, Crime Branch is responsible, through the staff of his department, for the intelligence organization of the criminal administration; in this capacity he is called upon to assist both the Provincial Government and the district authorities. He is also authorized to call upon the district or railway police for action in such matters, whether in respect of crime or intelligence as may, from time to time, be considered to his charge. In respect of crime, Department of Police Crime Branch will keep the Deputy Inspectors General of Police a Special Branch, a Crime Branch the ranges concerned fully informed of all action which his department is taking within the sphere of their jurisdiction. The Deputy Inspector-General of a range is responsible to the Inspector General for the administration, training and discipline of the police of his range and for the efficiency of their organization and operations for the prevention and detection of crime. In the exercise of this responsibility a Deputy Inspector General will interfere as little as possible with the executive authority of the Superintendents under him, and will permit such modifications of practice and organization to suit local conditions as he may consider advisable, and as the law and these rules allow. He will use his powers of control to secure a uniform standard of efficiency and the fullest co-operation between districts and branches of the force in the circulation of information and in action against criminals. To ensure that efficiency shall not be impaired by undue variation in methods or practice in different parts of the province, Deputy Inspector-General of Ranges and of the Crime Branch shall maintain close touch with each other by informal meetings and formal conferences. They shall freely exchange information relating to the criminal administration, and shall ensure that co-operation between ranges and branches of the force is as close as that between the district within a range. Before issuing any circular order having the effect of altering in principle any matter of departmental practice or affecting the administration of the law, Deputy Inspector General shall obtain the approval of the Inspector General. Copies of all such circular orders and of instructions of general importance whether previously approved by the Inspector General or not, 31 shall be sent to the Inspector-General and other Deputy Inspectors-General for information.” 52. The rule defines the parameters of the powers of all the Deputy Inspector General of Police in the Police Force with the distinction that the Range Deputy Inspector General of Police has the power of administration, training and discipline of the forces within his statutory Range, which shall include all the Police personnel initially in his range and transferred to any other establishment under the Police Rules. The aforesaid arrangement under Rule 1.6 further has to be read with Rule 1.5, which provides that all police officers appointed or enrolled in any establishment shall be construed as one police force of the District and is obliged to and legally empowered for Police duty anywhere within the province. This Rule even restricts the sub-division in Police territorially by creating class such as mounted and foot police, which may otherwise militate the scheme of the Police Act. 53. The appointments and enrollments of the Police Personnel are regulated by Rule 12 of the Police Rules, 1934 of Chapter XII, which deals with three different sets of recruitment processes described thereunder: - a. Recruitment in prosecution (Legal Branch), Rule 12.6(3)(C). b. Recruitment of Technical District, Rule 12.3 (B) c. Recruitment of upper subordinate in Police, Rule 12.6. There is a difference in the training courses of the personnel appointed in the aforementioned units as prescribed in the Police Rules. 32 a. Training of personnel: - i. Constables, Rule 19.2 ii. Upper subordinate, Rule 19.25 b. Training of officers in prosecution (Legal Branch), Rule 19.26. c. Training of the officers in Technical District, Rule 12.3 (B) (2). Rules 12.6 (3) (e) suggests that: “(e) After recruitment no Inspector (Legal) shall be allowed change of cadre from Inspector (Legal) to the Executive of any other Branch in the Police Department.” 54. On the basis of the aforementioned criteria of recruitment and training in terms of the Rules referred to hereinabove, it can be easily concluded that the Sindh Police force has three independent units i.e. Executive, Technical District and Prosecution (Legal). On scanning of the rules, it can be further concluded that the Police personnel appointed in terms of the aforesaid recruitment process cannot horizontally travel to any other unit referred to hereinabove either by way of transfer or otherwise. 55. We may, however, observe that Rule 12.8 of the Police Rules, 1934 provides recruitment process and training program from Constable to Inspector in the Police Establishment (Executive Unit) is common. 56. There are six (06) promotion lists maintained in the Police Department as per seniority and qualification (Trainings and Promotional Courses) of the personnel in various ranks i.e.: - 33 i. List-A, maintained in the District for Constables having 3 years’ successful completion of probationary period and found fit for promotion to the List-B. (Rule 13.6). ii. List-B, maintained in the District for Constables, who are present in List-A and found eligible to be sent to Lower School Course, which is a promotional training for promotion to the rank of HC. (Rule 13.7) iii. List-C, maintained in the District for Constables, who have qualified Lower School Course and are eligible for promotion to the rank of Head Constable. (Rule 13.8). iv. List-D, prepared in the District and forwarded to the Range DIGP for approval and maintenance of seniority list. This list includes Head Constables eligible for the promotion to the rank of ASI after successful completion of Intermediate School Course. (Rule 13.9) v. List-E, maintained by the Range DIGPs, containing confirmed ASIs, who are eligible for promotion to the rank of Sub-Inspectors. (Rule 13.10) vi. List-F, prepared by CPO on the recommendation of Range DIGPs and maintained by Central Police Office (CPO) on centralized basis, containing confirmed Sub- Inspectors, who have qualified Upper School Course and are eligible for the promotion to the rank of Inspectors. (Rules 13.15). 57. Under the Police Rules, 1934, the seniority of the Constable and Head Constable is maintained in the District, whereas seniority of ASI and SI is maintained by the Range DIG. The seniority of the Inspector in Police is maintained by the Central Police Office. The training and examination of the Executive Unit is provided in Chapter XIX of the Police Rules. 58. Now with this background, we feel that we should also examine as to how Sindh Reserve Police was raised. In order to understand the establishment of Sindh Reserve Police, we have gone through Chapter XVII, which deals with the Head Quarters 34 Establishments and Reserves in Police Force. It appears that under the aforesaid Chapter reserves are created in the following chronology. 59. Rule 17.9 (1) of the Police Rules, 1934 spells out the first armed reserve, Rule 17.10 speaks of mobilization of the second reserve and Rule 17.11 defines the mobilization of third reserve. In the aforesaid rules, the first armed reserve is the Regular Police in District maintained by the Superintendent of Police or Senior Superintendent of Police of the District and is moved under the orders of the respective range DIG of Police or Inspector General of Police. The mobilization of second reserve takes place under the orders of the Inspector General of Police, whereas mobilization of third reserve is under the orders of the Provincial Government (Chief Minister through Inspector General of Police). 60. The aforesaid three “Provincial Reserves”, by a Notification dated 01.7.1980 were combined together and made part of Sindh Constabulary Force with effect from 01.7.1980. The “Provincial Armed Reserves” on its merger became the Sindh Constabulary; before the merger of the aforesaid unit, it was regulated by the District Police under Rule 17.9, 17.10 and 17.11 of the Police Rules, 1934. By another Notification dated 03.4.1985 of the Sindh Government, the ‘Sindh Constabulary’ was renamed as ‘Sindh Reserve Police’ and was given under the command of DIG, Training and Sindh Reserve Police. 61. We were informed during the hearing that the recruitment process adopted for the aforesaid personnel of Sindh Reserve Police was common to that of a District Police in terms of the Police Rules as 35 initially they were given the training through Police Training Centers. There is an additional requirement of acquiring practical training in terms of Rule 19.25, which the Sindh Reserve Police personnel did not acquire till 1992. 62. The issue cropped up when on 30.6.2010, a Standing Order No.243 of 2010 was issued by the then Inspector General of Police declaring Training Branch Establishment as a Range. On account of this Standing Order, the DIG, training branch establishment was unauthorizedly conferred administrative powers of DIG range. The DIG training branch started recruitment of the Police Constables as provided under the Police Rules. He also started maintaining the seniority of all the Police personnel serving in the training branch establishment against the language of the Police Rules. The Standing Order referred to hereinabove was admittedly issued without the approval of the government, which is a mandatory requirement. Even otherwise aforementioned Standing Order is beyond the authority of the Inspector General of Police as the Rules do not confer upon him powers to alter the terms and conditions of any of the establishment within the Police Force. The situation further aggravated when the then DIG, Sindh Reserve Police usurped the administrative powers of the range DIG unilaterally. He started recruiting the Police personnel in the manner provided under the Police Rules, which was beyond his authority. The seniority of the Police personnel serving within the Sindh Reserve Police establishment, which ought to have been maintained in their 36 respective Ranges, was also maintained by him illegally. Neither any Standing Order nor any other instrument authorized the DIG, Sindh Reserve Police to exercise administrative powers of the nature. Likewise, the Special Branch also recruited the Police personnel and maintained their seniority within their establishment through the DIG heading the establishment. However, the DIG Crime Branch establishment neither exercised the administrative powers of the Range DIG nor recruited any Police personnel, even the seniority of the Police personnel serving in the establishment was not maintained by him. In other words, the very Standing Order of 30.6.2010 declaring training branch establishment as a Range ex-facie was in violation of Section 2 of the Police Act, 1861 read with Rule 1.5 of the Police Rules, 1934, whereas the administrative powers unilaterally exercised by the DIG, Sindh Reserve Police establishment and Special Branch establishment were against the spirit of the Police Act and Rules. 63. In the aforesaid events, when these three establishments usurped the powers of the range DIG without any sanction of law, the entire purpose of the Police Act and the Rules of 1934 was defeated. Under the Police Rules all foot Constables appointed by this establishment were given the training as provided to the Executive Police Force, however, the Sindh Reserve Police establishment also recruited ASIs in the same manner as is being done by the other establishments, but they were not given the practical training as provided under Police Rule 19.25. Subsequent thereto, after the 37 issuance of Standing Order 1992, the practical training under Rule 19.25 was made mandatory for the Police personnel of Sindh Reserve Police establishment. 64. During hearing of the appeals, the AIG (Establishment) informed us that some Police personnel of the Sindh Reserve Police sought their transfer from Sindh Reserve Police establishment to executive Police establishment. Upon this request, a Standing Order No.119 of 1992 dated 08.9.1992 was issued by the Inspector General of Police acceding to their request subject to their obtaining practical training provided under the Police Rules. Since the issuance of the Standing Order all the Police personnel recruited in the Sindh Reserve Police establishment were made to undertake practical training and at present within the establishments all the personnel of the Police have obtained practical training in terms of Chapter XIX of the Police Rules, 1934. 65. We are disturbed in the manner the powers were being exercised by the DIGs heading different establishments under the nose of the government, which was not only against the Police Rules but such practice has actually divided the Police Force. The establishments, were created to facilitate the smooth working of the Police. There is no concept of cadre within the Police, which is one indivisible force. However, as referred to hereinabove the Police Rules prescribe three modes in recruiting the Police personnel. The first recruitment mode is appointment of the Executive Police, the second recruitment mode, which has a different set of Rules refers to 38 appointment of technical District Police and the third mode brings the recruitment of the Inspectors / Sub-Inspectors Prosecution (Legal). There can be employees in the Police Department, which are non- uniformed like ministerial staff and / or I.T. Department but they are recruited and regulated by the Sindh Civil Servants Act, 1973 and the Rules framed thereunder. 66. The learned Service Tribunal has misconstrued Rule 1.3 of the Police Rules, under which different establishments were made in the Police Force to facilitate the smooth working. By erroneous assumption of the powers under the Standing Order or otherwise, the DIGs, who were heading the establishments construed the establishment as Ranges. Additionally, all the administrative powers conferred on the Range DIG, i.e who heads the Executive Police Range, were encroached on by the heads of these establishments created under the Rule 1.4. The said DIGs of the establishments also started maintaining seniority and making recruitments to these establishments, in negation of the clear language of the Police Rules. These actions of the heads of the establishments ex-facie militate the provisions of Police Act and Rules which provide the Police Force as one indivisible Force. The learned Service Tribunal loosing sight of the fact that these establishments cannot be construed as Ranges in the first place had directed the government to give them the status of cadres, inter alia, on the ground of their respective functions performed by the personnel in these establishments. The concept of cadre has neither been defined in the Police Act nor by the rules 39 framed thereunder. Though the term ‘Cadre’, has been used in Police Rule 12.6(3)(e). Even in the Sindh Civil Servants Act, 1973 or the rules framed thereunder, the cadre has not been defined. However, the term ‘Cadre’ has been defined in Rule 9(4) of the Fundamental Rules, 1992. The said Rule defines “Cadre” means the strength of a service or a part of a service sanctioned as a separate unit.” 67. We have further noticed that the concept of ‘Cadre’ within the Police service could only be introduced if it is established that the recruitment process, the training and practical training of the members of Police Force is distinct. Under the Police Rules, entry point of all the Police personnel in Executive Police is common. They have common recruitment process, police training and practical training as prescribed under the Rules and once these trainings after their appointments are completed, they are transferred to the different establishments under the Rules. The posting and transfer to an establishment of a member of Police Force is permissible under Police Rule 1.5 would not change the Cadre of a police personnel. The Rule 1.5 allows the police personnel to progress vertically by the rules prescribed and could be transferred to any of the establishment. There is no restriction placed on a police official for transfer from one establishment to other. 68. Moreover, section 12 of the Police Act, 1861 leaves no doubt or ambiguity as to the fact that the Police Force is an indivisible entity that is commanded by Inspector General of Police, who has vast powers; subject to the approval of the government, he can frame 40 orders or rules with regard to the organization, classification and distribution of police force. In other words, the aforesaid provision enables the IG Police to caters to the situation, where it is expedient for him to issue such orders and make such rules, with the approval of the government, as are required to meet the contingencies related to, inter alia, prevention and detection of crimes. 69. The learned Tribunal has erred in treating the different establishments created under the Police rules, 1.4 as various Cadres classified on functional basis; whereas the overall scheme of Police Act, 1861 and the rules 1934 envisage the police forces one indivisible body possessing various establishments performing the assigned functions such as District Police, Police Training Center, Crime Branch, Special Branch, Reserve Police and so on. Each of these establishments are in fact integral parts of the police force, and under no rules of construction they can be construed as separate or independent Cadres. 70. Therefore, the directions of the learned Tribunal to the government to create Cadres in substitution of the establishments is neither warranted by the Act nor by the Rules and will lead to anomalies as has happened in the case in hand, where the DIGs of different establishments started exercising the administrative powers of the Range DIGs. 71. We are clear in our mind that there should be common seniority of Police Personnel serving in all the establishments to be maintained by District Police, the Range DIG and Central Police Office (C.P.O.) 41 strictly as provided by the Rules in Chapter XIII, as discussed in Para 56 supra. Therefore, the Sindh Government and the competent authority under the Police Rules shall prepare the common seniority list of the Police Personnel serving in different establishments within three (03) months of the date of this judgment in terms of Police Rules and report compliance. 72. Likewise, we are clear in our mind that all the establishments, other than the executive police establishment, i.e., in-charge District police and Range DIG, are barred from making direct or indirect recruitment or promotion. 73. Being the custodian of the service record etc. of the Police personnel, the District police/Range DIG, shall make selection for Police personnel for police training and practical training, and no other establishment shall be authorized to make such selection. By way of clarification it may be observed that the matters related to seniority, promotion or trainings in respect of Police Inspector, the competent authority is Inspector General of Police, as provided in the rules 1934. 74. It has been observed that in many cases the Police personnel have completed their statutory period of probation but they were not confirmed for want of notification, and as result of which such officials have suffered in terms of delayed promotion or loss of seniority, which is a sheer negligence and abuse of power on the part of the competent authorities concerned. Hence, we are of the view that this practice must be brought to an effective end so that injustice may 42 not be perpetrated against such officials. Therefore, in future those Police Personnel who have completed their statutory period of probation, whether it is three years or two years, they shall stand confirmed whether or not a notification to that effect is issued. 75. We have further observed that a cherry picking is made in the case of selection of Police personnel for police training or practical training despite the fact they have completed their required period to be eligible for such trainings, which amounts to denying them of timely promotion for the next scale; hence, we direct that in future, competent authority shall ensure that the Police personnel who have completed their required period to be eligible for trainings shall be forthwith sent for the training; and in case such police officials are bypassed for such trainings on account of default by the department, or to extend a favor to the junior, or negligence by the authority concerned, their inter-se seniority and the accompanying financial entitlements shall not be effected on account of their late joining or completion of training. 76. For the reason stated hereinabove, we allow all these appeals and set aside the judgment of the learned Sindh Service Tribunal. It is expected from the Sindh Government and the Inspector General of Police, Sindh that the directives contained in this judgment shall be implemented in its letter and spirit without any undue delay and the seniority list of all the Police personnel belonging to any of the establishment created in terms of Rule 1.4 of the Police Rules, 1934 shall be prepared within the time stipulated in the judgment. 43 77. Copies of this judgment be sent through fax and otherwise to the Sindh Chief Secretary, Home Secretary, Sindh, Inspector General of Police, Sindh and Advocate General, Sindh, for their information and compliance. CHIEF JUSTICE JUDGE JUDGE Islamabad, the ____________________ Approved for reporting

{'id': 'C.P.L.A.529_2015.pdf', 'url': ''}

{'id': 'C.P.L.A.529_2015.pdf', 'url': ''}

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.536 OF 2015 (Against judgment dated 04.2.2015 of the Peshawar High Court, Peshawar passed in Writ Petition No.1012 of 2014) Dr. Ikramullah Khan … Petitioner Versus Khyber Pakhtunkhwa Agricultural University, Peshawar and others … Respondents For the petitioner: Mr. M.Shoaib Shaheen, ASC For respondent Nos.1-5: Mr. Khalid Khan, ASC For respondent Nos.6-7: Mr. Tanvirul Islam, ASC Raja Abdul Ghafoor, AOR. Respondent No.8. Not represented On Court’s Call: Dr.M.Mukhtar, Chairman HEC Professor Khan Bahadur Professor M.Ismail. Date of hearing 08.3.2018 ORDER MAQBOOL BAQAR, J. - The grievance of the petitioner is that though he has achieved his Doctor of Philosophy (PhD) degree, in “Weed Sciences”, and also possess the requisite length of ten (10) year experience, as prescribed for the post of Associate Professor (BS-20) but he has not been selected for the said post, and instead respondent No.6 and 7, who have neither been conferred doctorate in “Weed Science” nor do they possess the requite experience, have been selected for such appointment. 2 2. Applications were invited, inter alia, for the post of Associate Professor (BS-20) in Weed Science Department by respondent No.2. According to the petitioner, he along with respondent No.6 and 7, applied for the said post. However he was the only candidate who has earned PhD in Weed Science, as the doctorate conferred on respondent No.6 was in “Bio Technology”, whereas respondent No.7 has earned his Doctorate in “Agricultural Sciences”. The petitioner further submitted that having been appointed as a Lecturer in the Weed Science Department on regular basis on 17.2.2003, he, at the relevant time possessed the requisite teaching experience of ten (10), years whereas respondents No.6 and 7 lacked such experience as it was through order dated 03.2.2005, that the appointments of said respondents as Lecturers were regularised with effect from 18.1.2005 and thus their experience comes to eight (8) years 4 months and 27 days only. 3. On the other hand respondent No.6 denied the petitioner self-professed exclusivity, and claimed that her PhD also is in the field of “Weed Science”, which fact according to her, is evident from the title of her thesis, and has also been verified by Professor Hiroshi Matumoto, of the Faculty of Life and Environment Sciences, who remained her principal supervisor during her pursuit of the degree, through his letter dated 15.4.2014, by, inter alia, stating that “There is no doubt that her degree is in Weed Science.” She claimed that her research papers have been published in various national and international reputable weed science journals like the “Journal of 3 the Weed Science Society of America.” She stated that after being awarded Master of Science (Honours) in Weed Science by NWFP Agriculture University, she was, on 01.2.2003 appointed as a Lecturer in the Weed Science Department of the University, which appointment was, through order dated 03.2.2005, regularised with effect from 01.1.2005. In 2006 she proceeded to pursue her PhD study and research programme in Weed Science, and was conferred a Doctorate in Weed Science in 2010, whereafter she resumed teaching in the respondent University, and was through order dated 17.9.2010 appointed as an Assistant Professor (BS-19), in the Department of Weed Science. In April 2011 she proceeded for her Post-doctorate in Weed Science. Respondent No.6 further stated that her teaching experience at the time of the closing date for the submission of the application was over 10 years. She claimed that being an HEC approved supervisor in the subject of weed science she is competent to supervise the students in pursuit of their PhD degree in Weed Science. 4. Whereas respondent No.7 claimed that after obtaining his Masters of Science (Honours) in Weed Science from NWFP University, on 16.9.2002, he joined the University, as a Lecturer on contract basis in the department of Weed Science, which appointment was, through order dated 03.2.2005 regularised with effect from 18.2.2005. He being a Lecturer in the department of Weed Science, HEC awarded to him a scholarship for a PhD programme in Weed Science, of the School of Agriculture and Food Sciences, 4 University of Queensland, Brisbane, Australia in 2006, and after being conferred a doctorate degree in Weed Science, he came back to Pakistan in 2011. According to respondent No.7, it was on the basis of the said degree that HEC, through letter dated 17.4.2014, accredited him to supervise the students/candidates pursuing their PhD studies and research in Weed Science. Respondent No.7 also claimed that by the closing date, he has earned eleven (11) years of experience which was one year in excess of the required experience. 5. In order to resolve the controversy regarding the field and scope of the subject degrees, this Court through order dated 30.10.2017, directed the petitioner, and respondents No. 6 & 7, to submit copies of their dissertation, and also desired to hear the Chairman, Higher Education Commission (HEC), along with an expert in Weed and Agriculture Sciences. In compliance with the said order, the Chairman HEC, along with an expert appeared before the Court. He submitted that in order to determine as to which particular field of Agriculture Science, the doctorate degrees conferred upon respondents No. 6 & 7 pertains to, a thorough perusal of the dissertation submitted by them would be required. He thus constituted a Committee comprising Dr. Professor Khan Bahadar Marwar, Pioneer chairman, Weed Science (Retd), University of Agricultural, Peshawar, and Dr. Professor Zahid Ata Cheema, Ex- Chairman, Department of Agronomy, University of Agriculture, Faisalabad. On 15.02.2018 the Chairman HEC submitted his report regarding the appraisal of the dissertations of the petitioner and the 5 respondents undertaken by the aforesaid experts Committee. From the minutes of the meeting of the said Committee, held on 11th January, 2018, a copy whereof is annexed to the Chairman’s report, it can be seen that the Committee upon examining the dissertations, and after due deliberation has come to the conclusion that the dissertations/thesis of all three of them, pertain to the field of Weed Science. Through their “general remarks” as incorporated in the said minutes, the Professors seem to have conveyed that normally in relation to foreign degrees conferring a doctorate on a candidate it is not the text of the degree, but the research conducted by the candidates (which certainly is reflected through their dissertations) which is determinative of the specific area or specialization of/in a particular subject the doctorate has been conferred. 6. As regards the thesis submitted by respondent No. 6, which is titled “Mechanism of Trifluralin Resistance in Alopecurus Aequalis”, it is submitted that the same delves into the Resistance Mechanism of “Trifluralin (Treflan) in a renowned weed known as “alopecurus aequalis”, the degree, in the words of the said experts therefore irrefutably pertains to the field of Weed Science. The contents of the thesis highlighted in the minutes leave no manner of doubt that the focus of the thesis, all the way, is on resistance of herbicide in Weeds and the matters related thereto. However, for a better comprehension of the issue, the contents of the thesis as mentioned in the report are reproduced hereunder: 6 i. Bioassay to confirm the resistance of herbicide in weeds ii. Absorption and translocation of 14C (Labelled Carbon) Trifluralin in concerned weed iii Cloning and isolation of tubulin genes iv. Cloning of AaTUA genes from Trifluralin resistance types of concerned weed v. Tubulin genes expression in concerned weed. 7. Similarly, as per the minutes, the thesis submitted by respondent No. 7, titled “Long Term Sustainable Management of Parthenium Weed, using Suppressive Pasture Plants” pertains to “one of the most noxious weeds of the world, namely, Parthenium, particularly its management, and use of suppressive plants for the purpose. The contents of the respondent No. 7’s thesis are as follow: i. The general introduction to the weed Parthenium and its menace ii. Management options for concerned weed iii. Selection of suppressive plants through glass house study iv. Suppression of Parthenium through field study v. Suppression of Parthenium weed through simulated grazing vi. Suppression of Parthenium under elevated Carbon Dioxide (conditions) vii. It includes the general discussion in conclusion of the study. The above makes it abundantly clear that the degree of respondent No. 7 also is conferred on the basis of research and dissertation/thesis in the field of Weed Science. 8. In his report the Chairman, HEC fully endorsed the opinion and findings expressed by the experts Committee. He pointed out that the petitioner and the respondent No. 7 both were conferred their doctorates by the University on Queensland Australia, and conducted their studies and research at the said University under one and the same Professor, namely, Steve Adkins. However, as per the University’s practice, as reflected from an e-mail addressed to 7 respondent No. 7 upon his successfully completing the PhD Program, the University requested him to inform it, as to what title he would prefer to be incorporated in his PhD degree, and it was thus on the choosing of respondent No. 7 that his degree was described as that in “the field of Agriculture Science”. However this Court by way of an abundant caution sought a further input in the matter, by also keeping in view the academic history of the petitioner and the aforesaid respondents, and on 15.02.2018 ordered accordingly. 9. In pursuance of the said order, the Chairman HEC constituted a fresh Committee by adding two more experts to the earlier Committee, namely, Dr. Tariq Mehmood, Professor, PMAS Arid Agriculture University, Peshawar and Dr. Sikander Khan Tanveer, Weed Program Leader/Principal Scientific Officer, Crop Scientist Institute, National Agriculture Research Centre (NARC), Islamabad. As per the report submitted by the Chairman HEC the said experts, after reviewing and analyzing the subject dissertations thoroughly, firmly expressed that the thesis/dissertations of all the three candidates pertain to Weed Science. The minutes of the deliberation of the Committee, which also contains a brief resume of the subject dissertations reinforces their opinion that the dissertation forming basis of the degrees in question relates to the field of Weed Science. Analyzing the dissertation/thesis of respondent No. 7 the Committee submitted that he has studied the management options of the Parathenium weed, suppression of Parthenium through suppressive plants in glass house as well as in the field and that he also studied 8 weed suppression through simulated grazing of animals, and under elevated Co2 conditions and has also recommended suppressive plants for such management. As regards the dissertation/thesis of respondent No.6, the committee stated that she had conducted bioassay studies to confirm herbicide resistance and used C14 trifurcation for absorption and translocation in the same weed and that she also conducted molecular study to clone and isolate tubulin genes and further studied expression of AaTUA genes in Alopecurus aequalis, which is a common weed. The subject, scope and the focus of respondents in their doctorate program was therefore evidently and clearly relating to the management of weeds which falls within the ambit of Weed Science. It may also be beneficial to note here that Weed Science is the discipline concerned with plants that may be considered weeds, their effects on human activities and their management. It is the study of vegetation in agriculture, aquatics and horticulture. 10. The minutes also contain information about the academic history of the petitioner and the said respondents as follows: Degree Dr. Ikramullah Khan, petitioner Dr. Saima Hashim, respondent No. 6 Dr. Naeem Khan, respondent No. 7 Graduation • BSC-2 year • Gomal University, DIK (14 years of schooling) • BSC (Hons) Agriculture (4 years) • NWFP Agricultural University Peshawar, 16 years of schooling • BSC (Hons) Agriculture (4 years) • NWFP Agricultural University Peshawar, 16 years of schooling MSC ▪ MSC (Botany)- 2 years ▪ Department of ▪ Already covered in BSC (Hons) Program ▪ Transcript/Detailed Already covered in BSC (Hons) Program 9 Botany University of Peshawar ▪ Transcript/Detailed Marks certificate (DMC) not provided therefore cannot comment on relevancy of courses taken ▪ (16 years of schooling) Marks Certificate (DMC) ascertain the relevancy of courses in the area of Weed Science ▪ Transcript/ Detailed Marks Certificate (DMC) ascertain the relevancy of courses in the area of Weed Science MPhil ▪ MPhil (Botany) ▪ Department of Botany University of Peshawar, Peshawar ▪ Field of Specialization: Botany (Invasive Weeds) ▪ Transcript detailed Marks Certificate (DMC) not provided therefore cannot comment on relevancy of courses taken ▪ 18 years of schooling ▪ M.Sc (Hons) Agriculture ▪ Department of Weed Science, NWFP Agricultural University Peshawar ▪ MPhil in Weed Science with courses and dissertation in Weed Science ▪ 18 years of schooling ▪ M.Sc (Hons) Agriculture ▪ Department of Weed Science, NWFP Agricultural University Peshawar ▪ MPhil in Weed Science with courses and dissertation in Weed Science ▪ 18 years of schooling PhD ▪ Dissertation title: Spread of Weed Seeds and its Prevention ▪ Dissertation title: Mechanism of Trifluralin Resistance in Alopecurus aequalis ▪ Dissertation title: Long Term, Sustainable Management of Parthenium Weed (Parthenium Hysterophorus L.) Using suppressive Pasture Plants From the above it can be seen that the petitioner did his MSc in Botany, however since he has not furnished his detailed marks sheet the specific field of such degree is not known. He however did MPhil in Botany with specialization in invasive weeds. On the other hand respondent No. 6 & 7 have done their BSc (Honors), in Agriculture, and their MSc (Honors), as well as MPhil in Weed Science, and their dissertation/thesis also was in Weed Science, and therefore Weed Science has remained the subject of their academic pursuit since earlier than that of the petitioner. 11. In addition to the foregoing, the respondents’ claim of their having earned doctoral in Weed Science is also verified and 10 reinforced from the letters written by their advisor, and principal supervisor, respectively, and thus through letter dated 15.4.2014, Dr. Professor Hiroshi Matsumoto, of Faculty of Life and Environmental Sciences, Director, Center in Research for Isotopes and Environmental Dynamics, University of Tsukuba, Japan, whilst verifying that he was the advisor of respondent No.6 during her PhD thesis, stated that her research was on Herbicides Resistance, which is a major problem conferring the contemporary Weed Science and unequivocally confirmed that her degree is in Weed Science. The Professor further stated that the PhD research papers of respondent No.6 have been published in Weed Science, the oldest journal of Weed Science. Likewise, Professor Steve Adkins, through his letter/certificate of April 2014, verified that respondent No.7 has conducted research studies for PhD under his supervision and also under the supervision of Dr’s Doug George and Chris O’Donnell, at the University of Queensland, Brisbane, and that respondent No.7 carried out his PhD studies on the “Long term sustainable management of Parthenium Weed (Parthenium hysterophorus L.) using suppressive pasture plants” and that his research work delved into the question as to how certain pasture plants would suppress the growth of parthenium weed, which is a significant invasive alien weed in more than 30 countries in an attempt to find ways of better management thereof, and that the evaluation of his work was conducted by external weed experts, before the PhD degree was awarded to him. The Professor clearly stated that the subject area of 11 the said respondent’s thesis was “Weed Science” and further that the respondent No.7, during his stay at the University learned research skills in many areas of Weed Science, and management of world’s most important invasive alien weeds, parthenium weed. He appreciated respondent No.7, inter alia, by saying that he fitted well into the Tropical and Subtropical Weeds Research Units within the University and reiterated that the subject area of his Doctoral study was “Weed Science” and that he has also published papers in the journals pertaining to Weed Science of national and international significance. 12. Indeed, it is true that the text of the PhD degrees awarded to the aforesaid respondents do not contain the word “Weed Science”, however, as stated by the experts and academics on the subject, it is not the text of the degree that are determinative of the question, as to in which specific field or the area of a particular subject, the degree has been awarded, it is rather the dissertation/thesis which reveals the field/specialization and the scope of the degree. 13. We may observe here that PhD degrees are awarded for programs across a wide spectrum of academic fields. During his doctorate programme, usually a candidate has to complete a course work and comprehensive examinations. The candidate also has to work on his dissertation/thesis. A PhD candidate has to submit a project, thesis or dissertation, often consisting of a body of original academic research. As has been thoroughly examined and analysed 12 by the experts who were assigned the task by the Chairman HEC under order of this Court, and as also evident from the afore- discussed letters of the research supervisor/advisors of the said two respondents, the study, and research conducted and dissertation/thesis written and submitted by them in pursuit of their doctorate degrees, were undoubtedly in the field of Weed Science and therefore the petitioner, who too has done his PhD in Weed Science should have known the above fully well, and ought to have avoided initiating legal proceedings challenging the appointment of respondent No.6 and 7 on the frivolous grounds as urged by him. 14. The petitioner’s objection that the said two respondents did not possess the requisite experience, also is clearly untenable, baseless and frivolous, as the said respondents have since their appointment on 01.2.2003 and 16.9.2002, been teaching Weed Science in the respondent University. The fact as to when and on what date, their such appointments were confirmed has absolutely no relevance in the matter at all, more so when it has not even been alleged that they were not teaching the students on regular/ full time basis, like the petitioner, or any other lecturer/teacher appointed on regular basis. Furthermore, as noted in the impugned judgment, since the credential and academic qualifications of the respondents were evaluated by three subject specialist from outside the Respondents’ university, and the same were re-evaluated by a high profile committee and were after going through the said process, granted marks higher than those granted to the petitioner, and their 13 re-evaluation by the Selection Board was approbated by the Syndicate of the University. Neither the High Court, nor this Court can, in the facts and circumstances of the case, substitute such evaluation, opinion and recommendation in favour of the respondents. 13. We therefore do not find any merit in the petitioner’s case and would refuse leave, and dismiss the petition accordingly. Judge Judge Judge Announced in open Court on 12.4.2018 at Islamabad Judge. ‘APPROVED FOR REPORTING’ (Aamir Sh.)

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE SARDAR TARIQ MASOOD CIVIL PETITION NO. 548-P OF 2013. (On appeal against the judgment dt. 02.07.2013 passed by the Peshawar High Court, Abbottabad Bench in C. R. No. 380 of 2005). Govt. of KPK thr. Secy Industries Commerce and Mineral Development, Peshawar and others. …Petitioner(s) VERSUS The Frontier Chemical Industries Ram Bagh, Mardan. …Respondent(s) For the petitioner(s): Mr. Mujahid Ali Khan, Addl. A. G. KPK. For the respondent(s): Mr. M. Naeem Anwar, ASC. Date of Hearing: 19.04.2016 (Judgment Reserved) J U D G M E N T EJAZ AFZAL KHAN, J.- This petition for leave to appeal has arisen out of the judgment dated 2.7.2013 of the Peshawar High Court, Peshawar whereby the learned Single Judge in its Chambers dismissed the revision petition filed by the petitioner and maintained the judgments and decrees of the fora below. 2. The learned AAG appearing on behalf of the petitioner contended that where the law has provided a hierarchy of legal fora for the enforcement of rights and liabilities, resort must be had thereto and that bypassing of such fora would not only overcrowd the Civil Courts but also defeat the purpose, the rules were enacted for. While arguing the CMA for condonation of delay, the learned AAG contended that where delay in lodging the petition occurred CIVIL PETITION NO. 548-P OF 2013 2 due to late supply of documents and lengthy correspondence between the various tiers of the department, it could well be condoned. The learned AAG, to support his contention placed reliance on the case titled Deputy Collector of Customs and two others Vs. Muhammad Tahir and another (PLD 1989 SC 627). 3. Learned ASC appearing on behalf of the respondent contended that since jurisdiction of the Civil Court is not barred by North-West Frontier Province Mining Concession Rules, 1976, Civil Court being a Court of plenary jurisdiction could entertain and adjudicate upon the dispute of this nature. The learned ASC next contended that where the question of jurisdiction has not been raised in the lower fora as well as the High Court, it cannot be raised before this Court for the first time. Controverting the arguments addressed in support of the application for condonation of delay, the learned ASC contended that late supply of documents or lengthy correspondence does not constitute a ground for condonation of delay. The learned ASC to support his contention, placed reliance on the cases titled Aziz ur Rehman Hamid Vs. Crescent Commercial Bank (2008 SCMR 54), Engineer-in-Chief, G.H.Q. and another Vs. Abdul Khaliq Siddiqui (2008 SCMR 60), Gul Muhammad Vs. M.C.B. Bank Limited through President and others (2012 SCMR 136) Muhammad Idrees Alvi Vs. Employees Old-Age Benefits Institution and four others (2001 SCMR 1967) and Gul Muhammad Vs. M. C. B. Bank Ltd. through President and others (2012 SCMR 136). 4. We have gone through the record carefully and considered the submissions of learned ASCs for the parties. CIVIL PETITION NO. 548-P OF 2013 3 5. A wade through the North-West Frontier Province Mining Rules would reveal that it is a perfect code in itself dealing with all the aspects regulating grant and refusal of license and lease; terms and conditions thereof; other conceivable eventualities arising out of mining activities of the licensee and the lessee and imposition of penalties including cancellation, remedies thereagainst and finality of the decision of the Government on an appeal filed in this behalf. The purpose of the legislature behind enacting these rules was to provide an integrated set up and hierarchy for the enforcement of rights and liabilities arising out of license and lease. Order of Licensing Authority can be challenged through an appeal to the Government. Decision of the Government subject to the provisions and the rules, in view of Rule 93(3) is final. It despite being so is justiceable if passed on account of mala fide, without jurisdiction, or in violation of the rules. In the absence of any such manifestation, the decision of the Government being final cannot be questioned anywhere. 6. Now, we are to see whether respondent invoking the jurisdiction of the Civil Court proved anywhere that action taken against him is mala fide, without jurisdiction, or in violation of the rules. A good number of the witnesses was examined by the respondent, but its attorney who appeared as PW-5 unreservedly admitted in his cross-examination that none of the respondents has any ill will, animus or acrimony against the respondent. Yes, there is no clause ousting the jurisdiction of the Civil Court, but the very words used in Rule 93(3) of the Rules that “subject to the provisions of these rules the decision of Government on an appeal shall be final”, rule out any other forum where the issue could be reopened or raised afresh. Want of jurisdiction or violation of the rules could have been CIVIL PETITION NO. 548-P OF 2013 4 another ground to seek annulment of the decision of the Government, but, there is also nothing on the record to show that the Licensing Authority or Secretary Industries and Mineral Development Government of KPK acted without jurisdiction and lawful authority. Where neither mala fide has been established nor want of jurisdiction or violation of the rules has been pointed out, we don’t understand how the Civil Court could arrogate to itself an authority to sit in judgment over the order passed by the Government in appeal. When faced with this situation, learned ASC stated at the bar that the respondent could not carry out mining activities because of force majeure. What is force majeure and who is competent to decide about it. Before we answer this question it is worthwhile to refer to the relevant provision which reads as under:- “94. Force Majeure.-(1) Where the failure on the part of the licensee or lessee to fulfil any of the terms and conditions of these rules arises from Force Majeure, the licensee or lessee shall stand absolved of responsibility. (2) For the purpose of this rule the expression “Force Majeure” means an act of God, war, insurrection, riot, civil commotion, tide, storm, tidal wave, Flood, lightning, explosion, earthquake or any other happening which the licensee or lessee could not in the opinion of the licensing authority reasonably prevent or control.” 7. A bare reading of the rule quoted would reveal that ‘Force Majeure’ provides a basis of exonerating the licensee or lessee to fulfil any of the terms and conditions of the rules but in any case, it is the opinion of the licensing authority which matters in a dispute of this type. Civil Court does not figure anywhere in the scheme of the rules. In his last-ditch effort to defend the impugned judgment, the learned ASC contended that the petitioner instituted the suit when it was observed in the order dated 02.04.1998 of the CIVIL PETITION NO. 548-P OF 2013 5 High Court that the question urged being question of fact has to be decided on the basis of evidence to be produced by the parties. But it will not help the respondent because a dispute of this type as observed above could be decided by the Licensing Authority or the Government itself. Assuming that in view of the observation made by the High Court, it was to be decided on the basis of evidence produced by the parties, the respondent should have produced evidence in this behalf. But the witnesses he examined have not produced any evidence, much less convincing on the record to show that the respondent could not carry out the mining activities due to force majeure. Instead an omnibus statement has been made by the attorney of the respondent that snowfall, rain and floods for the last 7-8 years and construction of Nawababad and Mandagucha road, with the aid of Asian Development Bank, obstructed the respondent’s access to the mines. But it being a bold assertion cannot be treated as evidence. The impugned finding thus being based on no evidence cannot be sustained. 8. Next comes delay of 41 days in filing the petition for leave to appeal. According to the learned Addl. A. G., delay in filing the petition occurred because of late supplies of copies and lengthy correspondence between various tiers of the department. This explanation, in the matrix of the case, appears to be satisfactory. It is more so when we see the conduct of the subordinate functionaries who being sell-out are ever ready to do away with anything public for petty gains. In the case of Deputy Collector of Customs and two others Vs. Muhammad Tahir and another (supra) while dealing with an identical aspect held as under :- CIVIL PETITION NO. 548-P OF 2013 6 “It has recently been held by this Court that the petitions on behalf of the Government or Government functionaries in matters involving Government interest or public interest, the petitioners no doubt would be treated at par with ordinary citizens; but they would be given the same concessions and considerations as given to the other citizens. It has also to be observed that while examining the merits of application for condonation of delay the Court can look into the conduct of the subordinate functionaries, on whose conduct the higher policy maker functionaries have only a remote physical control. Hence, the conduct of the lower functionaries can in appropriate cases be taken as a good ground for condonation of delay. In this case, prima facie, some of the lower functionaries, as explained in the application, seem to have misconducted in the matter of vigilance and preparation for filing of petition for leave to appeal. And further, as admitted at the Bar, departmental action is being taken against them in this behalf. This amongst other shows bona fides on Government’s part. We consider it a fit one for condonation of delay. Accordingly the application in that behalf is allowed and the delay is condoned.” 9. We, thus, by following the judgment cited above, condone the delay in filing the petition. The cases of Aziz ur Rehman Hamid Vs. Crescent Commercial Bank, Engineer-in-Chief, G.H.Q. and another Vs. Abdul Khaliq Siddiqui, Gul Muhammad Vs. M.C.B. Bank Limited through President and others, Muhammad Idrees Alvi Vs. Employees Old-Age Benefits Institution and four others and Gul Muhammad Vs. M. C. B. Bank Ltd. through President and others (supra) being distinguishable on facts and features of the case are not attracted to the case in hand. We, therefore, convert this petition into appeal, allow it and set-aside the impugned judgments and CIVIL PETITION NO. 548-P OF 2013 7 decrees. While parting with the judgment, we hold that the Licensing Authority shall auction the lease after giving wide publicity in the newspapers having wide circulation. However, the respondent shall be given the right of first refusal. JUDGE JUDGE Announced in open Court at Islamabad on __________________ JUDGE ‘Not Approved For Reporting’ M. Azhar Malik

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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 NO.549-K OF 2019 (Against judgment dated 4.10.2019 passed by High Court of Sindh at Karachi passed in CP. D.-182/2019) Gulab Khan …Petitioner (s) Versus The Chairman (NAB) and another …Respondent(s) For the Petitioner (s) : Mr. M. Anwar Tariq, ASC For the NAB : Mr. Sittar Sahil, Special Prosecutor NAB Mr. Hassan Akbar, Addl. Prosecutor General NAB with Jawaad Hassan, I.O./Deputy Director NAB Date of Hearing : 18.12.2019 ORDER QAZI MUHAMMAD AMIN AHMED, J.-Ghulab Khan, petitioner herein, seeks admission to bail. As Secretary Karachi Port Trust Officers Cooperative Housing Society, he is accused alongside others in NAB Reference No.11 of 2018 for having unauthorizedly doled out commercial/residential plots to the non- members after interpolating minutes of the meetings; loss incurred by the society is estimated as 11.73 Billions. It is further alleged that he diverted the amounts so received to his own coffer. Having surrendered the plots as well as claims thereon, all the co-accused have since been released on bail by the High Court of Sindh. Considered distinguishly placed, he has been denied the concession vide impugned order dated 4.10.2019. 2. Learned counsel for the petitioner contends that notwithstanding the accusation, the petitioner, nonetheless, is identically placed and as such there was no occasion for the learned High Court to decline the request. It has been pointed out that CIVIL PETITION NO.549-K OF 2019. 2 allegation of petitioner having diverted funds into his own chest is not supported by evidence and, thus, the distinction vis-a-vis the co-accused is not sustainable. The learned Law Officer, while faithfully contesting the motion, nonetheless has fairly conceded absence of any evidence to suggest diversion of the sale proceeds. 3. Heard. Record perused. 4. It is admitted at all hands that barring the petitioner, all the co-accused, including those placed at a higher rung, have been released on bail. The entire land has since been retrieved by the society; the allottees had also abandoned their claims. In the above backdrop, petitioner’s culpability, alongside his colleagues in the crime can be best settled after recording of evidence, during the trial already in progress. The learned Law Officer has not been able to point out evidence suggestive of any aggravated role played by the petitioner in the scam; he cannot be treated differently. Sauce for the goose is sauce for the gander. This petition is converted into appeal; allowed. Petitioner/appellant shall be released on bail subject to his furnishing bond in the sum of Rs.One Million with one surety in the like amount to the satisfaction of the learned trial Court. JUDGE JUDGE Islamabad, the 18th December, 2019 “Not Approved For Reporting” Azmat/* JUDGE

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mushir Alam Mr. Justice Qazi Faez Isa Mr. Justice Sardar Tariq Masood Civil Petitions for leave to Appeal No.549-P of 2015, 141-P & 142-P of 2017 Against the judgment dated 10.07.2015 passed by the Peshawar High Court, Peshawar in W.P No.1283-P/2015 and against the common Judgment dated 21.9.2015 passed in W.P No.3685-P/2015 and in Review Petition No.160-P of 2015 (arising out of W.P No.1283-P/15) respectively). M/s Bara Ghee Mills (Pvt.) Ltd. in CPLA No.549-P/15 M/s Bilour Industries (Pvt.) Ltd. in CPLA No.141-P/17 M/s Bara Ghee Mills (Pvt.) Ltd. in CPLA No.142-P/17 Petitioner(s) VERSUS The Assistant Collector Customs & 04 others Respondent(s) (all cases) For the Petitioner(s): Mr. Isaac Ali Qazi, ASC For FBR: Hafiz Ahsan Ahmed Khokar, ASC (on Court’s call) Date of Hearing: 06.04.2017 JUDGEMENT Mushir Alam, J.- In brief, both the Petitioners, who are manufactures of Ghee and Oil, initially challenged the restriction on the export of their products to Afghanistan and other Central Asian countries in terms of sub-rule (6) of Rule 15 of the Manufacturing In Bond Rules, 1997, dated 6.11.1997 (abbreviated as MIB Rules), through Writ Petitions, in Peshawar High Court, which were dismissed vide consolidated Judgment dated 3.5.2001 (since reported as Messrs Shahzad Ghee Mills Ltd., Swabi versus Pakistan, through Secretary, Finance, Government of Pakistan, Islamabad and 6 others 2001 CLC 1942). It was held that the impugned restrictions is not in terms of MIB Rules but, in terms of Para 8 of the Export Policy Order 2000 made under Import and Export (Control) Act, 1950; while dismissing the writ petitions it was further directed that:- “Interim order dated 31.08.2000 and all other interim orders passed by this Court in this writ petition or in the connected writ Petitions shall stand with drawn. Civil Petitions for leave to Appeal No. 549-P of 2015, 141-P & 142 -P of 2017 2 However, the Petitioners who have exported their manufactured goods to Afghanistan via land route under the orders of this (i.e. High Court) uptodate, the respondents would be entitled to claim all Government dues leviable on such goods and shall recover them in accordance with law”. 2. The Petitioners herein challenged the above noted judgment through Civil Appeals No.1137 of 2001 and 1134 of 2001 respectively before this Court, which were also dismissed on 06.02.2014 along with other connected Civil Appeals. Petitioners filed Civil Review Petitions against said judgment, which too were dismissed. 3. The proceedings for the recovery of customs duties and other leviable government dues were stayed at the motion of the Petitioners in earlier round of the proceedings. Consequent upon the dismissal of the above noted Civil Appeals on 06.02.2014 and vacation of interim injunctive orders the respondents resumed the recovery proceedings, as directed by the learned Bench of the High Court as reproduced in paragraph preceding above. 4. The petitioner Bara Ghee Mills (Pvt.) Ltd; through W.P No. 2205-P of 2014, and Bilour Industries Pvt. Ltd. through W.P No.3685-P of 2015, challenged the resumption of recovery of government dues proceedings, which were dismissed on 30.10.2014 and 21.9.2016 respectively. 5. Writ Petition No.2205 of 2014 [filed by Bara Ghee Mills (Pvt.) Ltd.] was essentially dismissed on the ground inter-alia that alternate remedy is available to the Petitioner under Rule 142 of the Customs Rules, 2001. Consequently the Petitioner challenged the recovery proceedings in terms of Rule 142 of the Customs Rules, 2001 before the Deputy Collector Customs (Recovery), which was dismissed, vide order in original dated 10.4.2015, inter-alia holding as follows:- “The Chargeability of duty and taxes on the goods imported into and exported under the scheme enunciated in the Manufacturing-in-Bond Rules was never objected to during litigation before the High Court or the Supreme Court. The recovery proceedings were suspended in compliance of the orders of the superior courts where the matter remained sub-judice and as soon as the courts orders attained finality, the proceedings so suspended were resumed and there is no question of time limitation in the instant case.” Civil Petitions for leave to Appeal No. 549-P of 2015, 141-P & 142 -P of 2017 3 6. Bara Ghee Mills (Pvt.) Ltd. once again challenged the above order through W.P No.1283 of 2015, which was dismissed vide impugned Judgment dated 10.7.2015. It was assailed in Review Petition No.160 of 2015 before the very Bench of the Peshawar High Court. The Judgment dated 10.7.2015 rendered in W.P No.1283 of 2015 is subject matter of CPLA No.549-P of 2015, and the judgment dated 21.9.2016 in (Review Petition No.160 of 2015) is challenged through CPLA No.142-P of 2017, which is also barred by 121 days. 7. Learned ASC for the Petitioners argued that, the impugned demand has been raised without any show cause notice and adjudication. Secondly; demand is barred by limitation; subject goods were exported via land route during the period from 20.03.2001 to 30.05.2001 and the limitation to raise demand under Section 32 read with section 211 of the Customs Act, 1969 is 5 years, where as impugned demand has been raised in 2014, thus barred by time. 8. We have heard the arguments and perused the record. Attending to CPLA No.549 of 2015 (Bara Ghee Mills Pvt. Ltd.). It may be observed that elaborate procedure for the recovery and remedy against the recovery of the government dues, is provided for under Chapter XI of the Customs Rules 2001. Appeals and Revisions against the Orders of adjudicating Authority/Forum/Tribunals are catered for under Chapter XIX of the Customs Act, 1969 which proceedings culminate in the High Court in its referral jurisdiction under Section 196 of the Customs Act, 1969. It is settled position in law that “where an exclusive Tribunal or a regular Court has jurisdiction in a matter but the legislation, creating such Court or forum or conferring jurisdiction on the same, also ends up by providing appellate or revisional jurisdiction to the High Court it self. Obvious example could be Civil and Criminal Proceedings, emanating under the Code of Civil and Criminal procedure, Income Tax Reference, Customs Appeals etc. In such matters, where the High Court itself is the repository of ultimate appellate, revisional or referral powers conferred by special relevant statute, it is rarest of case that the High Court may be persuaded to entertain a Constitution remedy in preference to its own appellate, revisional or referral dispensation arising in course of time” (See Khalid Mehmood versus Collector of Customs, Customs House, Lahore (1999 SCMR 1881 @ 1887). Learned Counsel for the Petitioners was not able to point out any exception, to directly invoke the writ jurisdiction of the High Court against the Order, when complete hierarchy to challenge Civil Petitions for leave to Appeal No. 549-P of 2015, 141-P & 142 -P of 2017 4 order dated 10.4.2015 recorded by the Deputy Collector Customs (Recovery), leading to High Court was available, approaching High Court directly, bypassing all such forum is not approved. 9. We have, also examined the application under section 142 of the Customs Rules, 2001 (@ 145 of the paper book), challenging the resumption of recovery proceedings which was essentially on the ground inter alia (para 5(iii) thereof) that “once goods exported under the provisions of Customs Act, 1969 ‘no duty and tax can be levied thereon nor can be demanded’. Beside demand is made without adjudication and being barred by time”. 10. It is matter of record, that earlier, Petitioners were denied export of goods to Afghanistan via land route, without payment of leviable Custom duties and taxes, whereupon the Petitioner filed W.P No.345 of 2001 and obtained interim order for the export of its goods via land route till final decision, As noted above the writ petition was dismissed, and so also interim order was vacated with directions to the Respondents to recover the government dues. Accordingly; after the dismissal of Civil Appeals by this Court, demand notices stood revived, as observed by the Deputy Collector (Recovery Officer), in the impugned order passed on application under Rule 142 of the Rules, 2001 that the impugned demand is not based on any eventuality within the contemplation of Section 32(2)(3) of the Customs Act, 1969, that may call for adjudication and or question of limitation may occur. 11. Learned Counsel for the Petitioners was not able to demonstrate that the impugned demand for the recovery of government dues is based on short levy or for the recovery of erroneously refunded duties for the reasons of any untrue statement, inadvertence error etc. or by reason of some collusion with the officers of the customs, in which case, such duties could only be retrieved after due notice within three years from the date of occurrence of eventualities postulated in subsection (5) of Section 32 of the Customs Act, 1969. 12. In terms of Rule 135 of Customs Rules of 2001, where the government dues are outstanding, the refereeing authority, issues a demand notice as prescribed, to the recovery officer certifying that all other formalities under the Act have been completed and there exists no bar or stay order against the proposed recovery. As noted above bar of injunctive order, against recovery of government was vacated, when the Civil Petitions for leave to Appeal No. 549-P of 2015, 141-P & 142 -P of 2017 5 writ petitions filed by the Petitioners were initially dismissed on 3.5.2001 and finally when the Civil Appeals were dismissed on 06.02.2014 followed by dismissal of Review Petitions by this Court. 13. From the Record it appears that other similarly placed exporters of Cooking Oil and Ghee, have already deposited the amount of government dues on dismissal of their Civil Appeals by this Court, as reflected from the paragraph 8 of the Orders of the Deputy Collectors Customs (Recovery) dated 10.4.2015. 14. Plea of the Petitioners that subject consignment was exported to Afghanistan during the period from 20.03.2001 to 30.05.2001, any demand for payment of government dues made beyond three years as provided under sub-section (3) of Section 32 of the Customs Act and or beyond 5 years during which period the Petitioners were required to maintain of import and export transaction under Section 211(3) thereof is barred. Contentions are preposterous, it is true that demand for the recovery of duty and or charge leviable but could not be levied, or short levied for the reasons of untrue declaration and or collusion, could be raised within 5 years from the date of such detection of untrue declaration or collusion and or within 3 years from the date of any inadvertent error and or misconstruction of amount of duty; which is short levied and or refunded. Instant claims and demand of recovery of ‘government dues’ does not fall either under section 32 nor, under section 211 of the Customs Act 1969, but is based on demand served under section 202 of the Act, 1969 for payment of the amount of government dues which were payable by the Petitioners on account of export of the good via land route. 15. Suffice to say that the recovery/demand notices were already in the field, which were stayed in the first round of litigation as noted above. "Government dues" as defined under Rule 133 (vi) of the Customs Rules, 2001 “means any recoverable amount of customs duty or any tax, duty or other levy being collected in the same manner as customs-duty, an adjudged penalty or fine or any amount unpaid which may be payable under any bond or instrument executed under the Act or such other law or the rules made there under” Chapter XI of the Customs Rules, 2001 read with Section 202 of the Customs Act, 1969 lays down the mechanism and procedure for the recovery of the same. Resumption of recovery proceedings, which were earlier stayed in judicial proceedings, Civil Petitions for leave to Appeal No. 549-P of 2015, 141-P & 142 -P of 2017 6 would not be hit by limitation, as for the recovery of “governmental dues” under section 202 of the Act 1969, no limitation is provided. In case Petitioners had any reservation as to calculation and or determination of such dues and or liabilities, at the time it was initially raised, host of domestic remedies and forum under the Customs Act, 1969 read with Customs Rules of 2001 culminating in referral jurisdiction of the High Court could have been availed, which were never availed and now it cannot be questioned in writ Jurisdiction under Article 199 of the Constitution of Pakistan, 1973. (One may see Messrs Paramount Spinning Mills Ltd versus Customs, Sales Tax and Central Excise Appellate Tribunal and another 2012 SCMR 1860). 16. Writ Petition No.3685 of 2015 filed by the petitioners before Peshawar High Court were rightly declined on the ground that the petitioners have alternate remedy by way of an “Application for the Determination of the dispute” under rule 142 of the customs Rule 2001, which remedy was availed by the petitioners in CPLA No.141-P of 2017 (Bilour Industries (Pvt.) Ltd.); was rightly declined as the “demanded duties” raised by the Respondents were already adjusted at the request dated 27.03.2014 of the petitioners (@ page 118 of CPLA No.141-P of 2017), therefore, in view of foregoing petitioners were not able to make out any case for interference. Accordingly, leave is declined and Petitions are dismissed. Judge Judge Judge ISLAMABAD, THE 6th of April, 2017 arshed Approved for Reporting

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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 SYED MANSOOR ALI SHAH Civil Petition No. 5599 of 2021 (On appeal from the judgment/order dated 14.09.2021 of the Islamabad High Court, Islamabad passed in WP No. 3454 of 2020). The Competition Commission of Pakistan, Islamabad and others …Petitioner(s) Versus Dalda Foods Limited Karachi …Respondent(s) For the Petitioner(s) : Mr. Faisal Siddiqi, ASC For Respondent(s) : Syed Faisal Hussain Naqvi, ASC Date of Hearing : 22.11.2021 O R D E R UMAR ATA BANDIAL, J.- Learned counsel for the petitioner-Competition Commission of Pakistan (“CCP”) has submitted that the paragraph 18 of the impugned judgment dated 14.09.2021 expects the CCP to confront the respondent, recipient of a notice under Section 37 (1) of the Competition Act, 2010 (“Act”), with the material on the basis of which CCP has formed its opinion that “a breach of law appears plausible and needs to be enquired into”. Such an obligation is invoked under Section 37(2) of the Act and Section 24A of the General Clauses Act. He submits that the CP NO. 5599 OF 2021 2 impugned notice under Section 37(1) of the Act is issued in pursuant of a suo moto power whereas the obligation imposed under Section 37(2) of the Act is for a complainant before the CCP to satisfy. Under Section 37(1) ibid the inquiry envisaged by the Act is meant to collect and evaluate relevant information and material on which fact finding may be done. At the inquiry stage there are allegations in the field but “relevant facts” in relation thereto are yet to be ascertained. These cannot be provided at the stage of notice of inquiry. Consequently, the direction is onerous and misconceived. 2. He has next drawn our attention to paragraph 15 of the impugned judgment wherein it is held that a notice by the CCP calling for information relating to breach of obligation of an undertaking under Section 3 or Section 4 of the Act must not violate the rule against self incrimination contained in Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”). Learned counsel contends that Article 13 of the Constitution is concerned with judicial proceedings of (criminal) prosecution and the resulting punishment and not with the conduct of a fact finding inquiry which lacks the attributes either of the afore-said stages of judicial proceedings. Calling for information is a necessary part of any inquiry. Consequently, the observation made regarding rights and Article 13(a) of the Constitution but CP NO. 5599 OF 2021 3 without reference to the law in relation thereto is hasty and unsubstantiated. 3. Thirdly, he has referred us to paragraph 20 of the impugned judgment wherein the different forms of evidence that are admissible before the Commission in its adjudicatory proceedings have been specified in Regulation 26A(2) of the Competition Commission (General Enforcement) Regulations 2007. These include verifiable transcripts of tape recordings, unedited versions of video recording, electronic mail, telephone records etc. He again emphasised that the said regulation identifies the type of evidentiary material that may be adduced in proceedings of the Commission wherein evidence is recorded. At the inquiry stage where the requisite material concerning an allegation collected for fact finding purposes. In this regard, it is the rules of natural justice that are relevant and not the strict application of the Regulations which would hamper the conduct of the inquiry. 4. In response the learned counsel for the respondent has read from paragraph 36 of the impugned judgment wherein the CCP is permitted to exercise its authority through a reasoned order to undertake an enquiry under Section 37 of the Act on material available with it which discloses a plausible case against the respondent. He submits that he would be satisfied if the requisite material is CP NO. 5599 OF 2021 4 provided to the respondent even though no reasoned order is passed. 5. We consider that the points raised by the learned counsel for the petitioner-CCP highlight certain weaknesses in the impugned judgment. Also paragraph 36 thereof by requiring a reasoned order to be passed under Section 37(2) of the Act imposes a condition which is not relevant to the present proceedings which have been initiated under Section 37(1) of the Act. It is not explained by the impugned judgment why and to what extent the requirements of Section 37(2) ibid ought to be read into Section 37(1) of the Act. 6. Be that as it may, the impugned judgment has adopted a dynamic view of the rights of a respondent before the CCP. We would like to consider the impugned judgment to examine the object and meaning of, inter alia, the provisions of the Act on the points that have been highlighted above. Accordingly, leave is granted in this petition, inter alia, on the said points. 7. Learned counsel for the petitioners submits that the impugned inquiry proceedings under Section 37 (1) of the Act apply not only to the respondent manufacturer but to all members of the Ghee and Cooking Oil Industry. However, the impugned notices have been assailed by the respondent only. As a result of the impugned judgment the inquiry proceedings against all undertakings who have not even challenged the CP NO. 5599 OF 2021 5 notices issued to them by the petitioners are stalled. He has, however, informed that the factual material for initiating the inquiry are available on record in the form of a working paper dated 27.07.2020 prepared by the CCP. That paper explains the basis for initiation of inquiry by the Commission under its resolution passed on 30.07.2020. The petitioner is statedly willing to provide the said material to the respondent through a fresh notice. Let that be done. 8. In the meanwhile the impugned judgment shall remain suspended. Judge Judge Islamabad 22.11.2021 Naseer+Irshad Hussain/* Judge

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( IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAJ4AR ALl AKEAR NAQVI CIVIL PETITION NO.5646 OF 2021 (Against the order of the Peshawar High Court dated 16.092021 passed in Writ Petition No.3794-P of 2021) M/s Sadiq Poultry (Pvt.) Ltd. .Appellant(s) VERSUS Government of Khyber Pukhtunkhwa thr. its Chief Secretary & others ...Respondent(s) For the Appellant: Sardar Muhammad Latif Khan Khosa, Sr. ASC Mr. Kamran Murtaza, Sr. ASC Syed Rifaqat Hussain Shah, AOR For the Respondents: Mian Shafqat Jan, Additional AG KP Dr. Kaniran Farid District Director Livestock, Peshawar Date of Hearing: 27.09.2022 ]IJAZ UL ABSAN, J-. This Petition arises out of an order passed by the Peshawar High Court, Peshawar dated 16.09.202 1 in Writ Petition No.3794-P/2020 (the "Impugned Order"). The Private Respondents, aggrieved of the prices and LflTtTh?fi Q1Q29 quality inter alia of poultry products/diary products, approached the High Court by filing a Writ Petition. The learned High Court, vide the impugned order, made several directions, inter a/ia, that a committee should be formed to review prices of livestock and poultry products and that officials of the government ought to make regular visits to the market to ensure that adulterated milk and other items which are not consumable are not sold in the market. 2. The necessary facts giving rise to this Us are that due to a purported rise in the prices of livestock and dairy products, the private respondents herein filed a writ petition before the Peshawar High Court and prayed that prices be fixed according to the prevailing pricing policy. The learned High Court sought various reports from government officials of the Khyber Pukhtunkhwa (the "KP") and made certain directions inter alia that a policy should be made to bring down prices of livestock, dairy and poultry products. It was further directed that exports of dairy and poultry products be banned till such time that the prices are lowered. The Petitioner-Company, being a poultry company in Pakistan, specifically the KP, is aggrieved of the directions of the High Court. The Petitioner filed a CMA before the High Court for irnpleadment as a necessary party which was allowed vide order dated 08.09.2021. On 16.09.2021, the Petitioner's counsel explained to the High Court that a complete ban on exports was causing colossal losses to its business and that the High Court's interference insofar as it concerned fixation of prices was -I 3 unwarranted. The learned High Court, vide order dated 16.09.2021, recalled its earlier order. However, while doing so, the learned High Court directed the formation of a committee to review the prices of livestock and poultry to calculate prices under a formula whereby prices of livestock by-products like hide, viscera, feathers, legs/wings etc. were deducted. Aggrieved of the impugned order, the Petitioner has approached this Court. 3. The learned Senior ASCs on behalf of the Petitioner have argued that the High Court does not have suo motu powers and, therefore, exercise of suo mow jurisdiction by the High Court was legally unjustifiable. The learned Senior ASCs have further argued that the learned High Court exceeded its jurisdiction in going beyond the prayers made in the writ petition and granting relief which was not even prayed for. The learned ASCs have further argued that the High Court could not have interfered in policy matters of the executive by ordering the formation of committees to review livestock prices based on a formula provided by the High Court. They maintain that such matter fell within the domain of the executive and judicial interference in the matter militates against the constitutional scheme of trichotomy of powers. It has further been argued that import and export is a federal subject and the High Court overstepped its jurisdiction by issuing directions in a matter which could not be entertained by it. QkEJmQN aopn22? 4 4. The Additional AG KP, who appeared on behalf of the official Respondents, has argued in favour of the impugned order. 5. We have heard the learned Counsel for the parties and perused the record. The basic question which needs adjudication is whether the High Court could exercise suo moW jurisdiction and issue orders relating to policy matters which squarely fall within the domain of the executive. 6. It is settled law that the High Court does not have suo moW jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan (the "Constitution") as compared to this Court which has been conferred exclusive jurisdiction in the matter by the Constitution in terms of Article 184(3). Reliance in this regard is placed on Miart Irfan Bashir v. Deputy Commissioner (DC), Lahore (2021 PLD SC 571). The prayer of the private respondents was essentially limited to the pricing of products. To the contrary, the learned High Court passed a series of suo rnotu orders, such as the orders dated 25.02.202 1 and 01.07.2021, whereby a ban was imposed on the export of dairy and poultry products. It is pertinent to mention here that banning imports or exports of products is not the domain of the Courts but falls under the exclusive domain of the executive. The learned High Court could not have transgressed its jurisdiction under Article 199 of the Constitution by passing an order which not only amounts to &?kTIIM' NO 5MQQLZ2Q 5 exercise of suo motujurisdiction, but also an encroachment on the jurisdiction of the executive. 7. Article 184 of the Constitution provides that the power to exercise suo motu jurisdiction vests only with the Supreme Court. The learned High Court has not cited any law or precedent on the basis of which it exercised suo moW jurisdiction. It is pertinent to mention here that the learned High Court was not competent to even fix the prices of products. The only course of action available to it, if necessary, was to direct the Government to do what it is required to do under the law in case its officials /functionaries were not doing that. The High Court, under Article 199, cannot devise a formula for pricing. Doing so is not permitted under the law and does not fall in the domain of the Courts and goes against the principle of trichotomy of powers envisaged under the Constitution. The act of issuing directions with respect to an issue or dispute which was not before the High Court constitutes overstepping jurisdictional limits which cannot be countenanced. The learned High Court could only pass appropriate and lawful orders on matters which have a direct nexus with the us before it and could not overstep or digress therefrom. The impugned order not only goes against the mandate of Article 199 but is also against settled principles of law. As such, the learned High Court could not have, suo moW, provided a formula for the calculation of prices nor could the High Court direct that a pricing committee be formed to implement the formula provided by the High Court. These CMLPtfl7flNO 5M OF 2020 6 matters clearly relate to the executive and ought to be left to the policy makers to regulate. 8. Even otherwise, Item No.27 of the Federal Legislative List clearly and categorically provides that import and export are a federal subject. Further, Section 3 of the Pakistan Imports and Exports (Control) Act, 1950 clearly states that the power to prohibit or restrict imports and exports vests with the Federal Government. As such, directing the Provincial Government to do so did not have any legal or constitutional basis or sanction behind it. For ease of convenience, Section 3 of the ibid Act is reproduced below:- "3. POWERS TO PROHIBIT OR RESTRICT IMPORTS AND EXPORTS (1) The Federal Govt. may, by an order published in the Official Gazette and subject to such conditions and exceptions as may be made by or under the order, prohibit, restrict or otherwise control the import and export of goods of any specified description, or regulate generally all practices (including trade practices) and procedure connected to the import or export of such goods and such order may provide for applications for licenses under this Act, the evidence to be attached with such applications, the grant, use, transfer, sale or cancellation of such licenses, and the term and manner in which and the periods within which appeals and applications for review or revision may be preferred and disposed of and the charging of fees in respect of any such matter as may be provided in such order. 7 (2) No goods of the specified description shall be imported or exported except in accordance with the conditions of a license to be issued by the Chief Controller or any other officer authorized in this behalf by the Federal Government. (3) All goods to which any order under subsection (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 16 of the Customs Act, 1 969(IV of 1969), and all the provisions of that Act shall have effect accordingly. (4) Notwithstanding anything contained in the aforesaid Act the Federal Government matj, by an Order published in the official Gazette, prohibiL restrict or impose conditions on the clearance whether for home consumption or warehousing or shipment abroad of any imported goods or class of goods." (Underlining provided) The aforenoted provision of law clearly states that the subject of restriction or prohibition of imports and exports falls within the domain of the Federal Government. As such, the High Court clearly exceeded its jurisdiction by formulating a policy regarding pricing of goods or commodities and banning exports of livestock, poultry, dairy products or products derived therefrom. It is necessary to note that Section 5B of the ibid Act provides that in case of violation of an order restricting or prohibiting imports or exports, the jurisdiction to adjudge the same would exclusively vest with a Commercial Court. The High Court, acting under Article 199, cannot be termed as a Commercial Court. This is because civil/ criminal jurisdictions - 8 of the High Court are separate from the constitutional jurisdiction of the High Court. In the former, evidence is recorded by the competent Court and then the High Court sits in appeal/revision over a decision of the lower fora. In the latter, the High Court is the Court of first instance, does not ordinarily record evidence regarding factual matters, and is acting as a constitutional court inter cilia to ensure that there is no infringement of the Constitution or the rights guaranteed to citizens by the Constitution. 9. We are of the view that the learned High Court has incorrectly applied the law. There are patent jurisdictional errors in the impugned order which warrant interference. The Learned Additional AG KP has been unable to persuade us to endorse the view taken by the High Court. We have repeatedly asked the Additional AG KP to show us how the impugned order is legally sound. However, he has been unable to do so. As such, the impugned order is found to be unsustainable. 10. For aforenoted reasons, this Petition is converted into an Appeal and allowed. The impugned order dated 16.09.021 passed by the Peshawar High Court, Peshawar is set aside. ISLAMABAD, THE 271h of September, 2022 Hans lshtiaq LC/* Øc"APPROVED FOR REPORTI

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Nasir-ul-Mulk, CJ Mr. Justice Gulzar Ahmed Mr. Justice Mushir Alam CIVIL PETITIONS No.565-568 & 582-584 OF 2014 [On appeal against common Judgement dated 17.03.2014, passed by the Islamabad High Court, Islamabad, in ICA No.8 of 2012] CIVIL PETITIONS No.1596-1597, 1602, 1643 & 2064-2067 OF 2014 [On appeal against common Judgement dated 03.07.2014 passed by the Peshawar High Court, Peshawar, in W.P.No.2657 of 2012] CRIMINAL PETITION No.214 OF 2014 [On appeal against common Judgment dated 17.03.2014, passed by the Islamabad High Court, Islamabad, in ICA No.8 of 2012] AND CMA No.3540 OF 2014 in C.P.No.565 OF 2014 [For impleadment of Telecom Pensioners Association as Respondent] Pakistan Telecommunication Employees Trust (PTET) through its M.D., Islamabad. (in CPs.565-568, 2064-2067, Crl.P.214 & CMA.3540) Pakistan Telecommunication Company Limited. (in CPs.582-584,1602) The President, PTCL, & another. (in CPs.1596-1597 & 1643) Petitioner(s) VERSUS Muhammad Arif & others. (in CP.565) Fazil Malik & others. (in CPs.566,582) Fida Hussain & others. (in CPs.567, 584) Muhammad Anwar Shahid & others. (in CP.568, 583) Muhammad Arif & others. (in Crl.P.214 & CMA.3540) Mst. Bakhat Pari & others. (in CPs.1596, 2066) Muhammad Yousaf Afridi & others. (in CPs.1597, 1602, 2064) Sadiq Ali & others. (in CPs.1643, 2065) Muhammad Rafique & others. (in CP.2067) Respondent(s) - 2 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 For the Petitioner(s) [in CP.565 & 566] : Mr. Khalid Javed Khan, ASC [in CP.567] : Mr. Zia-ul-Haq Makhdoom, ASC [in CP.568] : Mr. Rizwan Ijaz, ASC Mr. Zia-ul-Haq Makhdoom, ASC [in CP.582-584, 1596-1597, 1602, 1643] : Mr. Shahid Anwar Bajwa, ASC Ms. Zahida Awan, EVP (Legal) PTCL [in Crl.P.214, CP.2064-2067] : Mr. Zulfiqar Khalid Maluka, ASC For the Applicant(s) [in CMA.3540] : Mr. Hashmat Ali Habib, ASC For the Respondent(s) [R.1-34 in CP.565] [R.1-134 in CP.566] [R.1-34 in CP.582] : Mr. Khalil-ur-Rehman, ASC [R.1-4,6-9,11-18,20-51 in CPs.567, 584] : Mr. Ghulam Mahboob Khokhar, ASC [R.1 in CP.568] : Mr. Abdul Rahim Bhatti, ASC [R.2 in CP.568] [R.1-2 in CP.583] : Ch. Mushtaq Hussain, ASC [R.1-60 in CP.1596] [R.1 in CP.1597] [R.1 in CP.1602] [R.1-805 in CP.1643] [R.1 in CP.2064] [R.1-624 in CP.2065] [R.1-60 in CP.2066] [R.1-135 in CP.2067] : Mr. Salah-ud-Din Khan, ASC Dates of Hearing : 10.11.2014, 27.11.2014, 28.11.2014, 01.12.2014 & 02.12.2014 JUDGMENT GULZAR AHMED, J.— These petitions have arisen from two sets of proceedings initiated by the respondents against the petitioners (1) at the Islamabad High Court, Islamabad and; (2) at Peshawar High Court, Peshawar. The impugned judgment of the Islamabad High Court, Islamabad is dated 17.03.2014 while impugned judgment of Peshawar High Court, Peshawar is dated 03.07.2014. Initially one set - 3 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 of Writ Petitions were filed in the Islamabad High Court, Islamabad, which were allowed by a learned Single Judge vide common judgment dated 21.12.2011 against which the petitioners filed Intra Court Appeals, which have been dismissed by the impugned judgment. The Writ Petitions in the Peshawar High Court, Peshawar, were decided by its Division Bench, by the impugned judgment. 2. Admittedly, the respondents were the serving employees, retired employees and widows of retired employees, who were employed in the Pakistan Telegraph & Telephone Department (T&T Department) and through various enactments were transferred to Pakistan Telecommunication Corporation (the Corporation) and then to the Pakistan Telecommunication Company Limited (the Company). The enactments under which their services were transferred are dealt with in this judgment herein below. In nutshell the grievance of the respondents who have filed Writ Petitions in the High Courts was that the pension was being paid to the erstwhile employees of T&T Department transferred to the Corporation and then to the Company which was with increase announced by the Government of Pakistan but this increase in pension was abruptly stopped by the petitioners. The respondents have prayed that the pension be paid in accordance with the increase announced by the Government of Pakistan vide its notification dated 05.07.2010. 3. We have heard the learned ASCs for the parties and have gone through the record. 4. Mr. Khalid Javed Khan, learned ASC appearing for the petitioner-Pakistan Telecommunication Employees Trust, after extensively going through various enactments and rules etc., has - 4 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 contended that there is no provision in the Civil Servants Act, 1973 for increase of pension and that whatever increase in pension is granted by the Federal Government is on the basis of its own policy. He also contended that the provision of Civil Servants Act being not applicable to employees of the Company consequently any increase in pension granted by the government to the civil servants will not extend to the employees of the Company. He further contended that though pension is granted as a part of terms and conditions of service but its increase is not the part of terms and conditions as the increase in pension is basically a matter of policy which has to be decided by the Trustees of the Trust. He contended that though the Trust is a statutory Trust but there being no provision in the statute providing for increase in pension, the increase in pension being a matter of policy is granted through an executive order. He admitted that before 2010, the pension to the employees of the Company was being increased as per the one announced by the Government of Pakistan but in 2010 the increase granted by the Government was not followed rather the increase in pension was granted as announced by the Trustees of the Trust. He contended that if the employees are paid pension, as increased by the Government of Pakistan, the provision of Section 44 of the Act of 1996 will become redundant. He further contended that the liability of the Trust to pay pension and its increase to the employees is restricted only to those, who were in employment in 1996, and those who came into employment after 1996 are not governed by the Trust and are merely contract employees and their contribution is paid to the Employees Oldage Benefit Institution (EOBI). He also contended that the petitioner has paid benefit of - 5 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 Voluntary Separation Scheme (VSS) to the employees and those who have received the benefit of VSS cannot maintain the petition as their dues including pensionary dues have been fully paid by the petitioner. 5. Mr. Zia-ul-Haq Makhdoom, learned ASC for the petitioner in C.P.No.567 of 2014; Mr. Rizwan Ijaz, learned ASC for the petitioner in C.P.No.568 of 2014; and Mr. Zulfiqar Khalid Maluka, learned ASC for the petitioner in Crl.P.No.214 of 2014 & C.P.Nos.2064-2067 of 2014 have adopted the arguments advanced by Mr. Khalid Javed Khan. 6. Mr. Shahid Anwar Bajwa, learned ASC for the petitioners in C.P.Nos.582-584, 1596-1597, 1602 & 1643 has contended that after 1996 on PTCL becoming a private Company, all the terms and conditions of service of respondents came to be fixed by the Company with the condition that it should not be less favourable to which they were entitled. He further contended that in considering the increase in pension actuary report is required to be taken into consideration and the actuary report is made on the basis of inflation, financial constraints of the Company to fund the unfunded portion of the increase. He contended that those employees who have opted for VSS in 2007, 2008 & 2009 are being paid pension @ 7% every month according to the terms of VSS and such being the bargain made by the VSS optees, they are not entitled to grant of any other pensionary benefit. He contended that Section 45 (2) of the Act of 1996 provides for contribution by the Company to the Pension Fund the amount determined by Actuary representing the unfunded proportion of the accrued pension liabilities from the effective date. He further contended that in terms of SRO NO.115(I)/96 dated 11.02.1996 the Company has discharged its obligation by making payment to the - 6 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 Trust according to the amount specified in Schedule-III of the said SRO and such became past and closed transaction. He contended that there are two types of regulations; one are statutory and the other are non-statutory and that the PTET Rules are statutory rules and are designed to govern the transferred employees. He further contended that the case of Masood Ahmed Bhatti is being reconsidered by this Court. 7. Mr. Khalil-ur-Rehman, learned ASC for private respondents in C.P.Nos.565, 566 and 582 of 2014 has read the provisions of six Ordinances commencing from Ordinance LI of 1994. The learned ASC has contended that through Trust Deed dated 02.04.1994 Pakistan Telecommunication Corporation Employees Pension Fund was created and all departmental employees transferred to the Corporation were entitled to be paid pension as defined under the Federal Government Pension Rules. He contended that after promulgation of the Act of 1996, Pakistan Telecommunication Employees Trust was created which took over the liability of the Pension Fund created by the Trust Deed of 02.04.1994 to that there was a continuity of Pension Fund from the one created by Trust Deed dated 02.04.1994 to that of the Pakistan Telecommunication Employees Trust. He referred to the definition of the term ‘telecommunication employees’ as given in the Act of 1996 and contended that all employees of former T&T Department are entitled to receive pensionary benefits as per the one fixed by the Federal Government. He contended that through vesting order dated 07.02.1996 issued by the Ministry of Communication, Government of Pakistan, the effective date of vesting of all properties, rights and liabilities of the Corporation to that of Pakistan Telecommunication - 7 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 Company Limited was announced to be that of 01.01.1996. Similarly, all employees of the Corporation become employees of the Company also from 01.01.1996 with liability in respect of payment of pension, therefore, the entitlement for payment of pension at the rate fixed by the Federal Government was accepted by the Company. He referred to the provision of subsection (2) of Section 59 of the Act of 1996 and contended that all orders passed prior to the promulgation of this Act were saved including the Employees Pension Fund Rules, 1994 and that the Company has assumed the liability and such pension is also protected. 8. Ch. Mushtaq Hussain, learned ASC for the respondents in C.P.Nos.568 & 583 of 2014 has made distinction of 4 kinds of employees that of T&T Department, Corporation Employees, Contract Employees and Company Employees and contended that the respondents are employees of T&T Department and being transferred employees their benefits cannot be reduced from the one they were enjoying as such departmental employees which is inclusive of pension. He further contended that the Transferred Employees are being paid salary and other dues that of a government employees and posed a question as to why the pension as fixed by the Federal Government should not be paid to the respondents. 9. Mr. Salah-ud-Din Khan, learned ASC for the respondents in C.P.Nos.1596, 1597, 1602, 1643, 2064, 2065, 2066 and 2067 of 2014 has referred to the letter dated 05.04.2013 of the Ministry of Information Technology wherein four questions were referred to the Ministry of Law with regard to payment of dues and the opinion of - 8 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 Ministry of Law dated 11.03.2013 where in dealing with the question of increase in pension it is opined as follows:- “Whether increase in pension of Federal Government is also allowed to transferred employees of the PTCL the issue is answered in the affirmative because their terms and conditions have been guaranteed by the Federal Government”. 10. Mr. Abdul Rahim Bhatti, learned ASC for the respondents in C.P.Nos.568 & 583 of 2014 has contended that the employees of T&T Department were transferred to the Corporation and then to the Company by operation of law with specific provision that their terms and conditions will not be varied to their disadvantage. He contended that the Company has been following the government rules in payment of pension upto 2010 and that such was a guaranteed right of the respondents which cannot be denied. He also referred to the share-purchase agreement and the notifications providing for increase in pension and contended that the increase in pension, as per government rules, having been paid for almost 13 years became practice and such practice cannot be discontinued as it becomes law. He further contended that the Transferred Employees are civil servants and their terms and conditions of service are governed by the Civil Servants Act. In support of his submissions, learned ASC has relied upon the case of Pakistan Telecommunication Corporation & another V. Riaz Ahmed & 6 others [PLD 1996 SC 222]; Divisional Engineer Phones, Phones Division, Sukkur & another V. Muhammad Shahid & others [1999 SCMR 1526]; and order dated 23.08.2013 passed by this Court in Civil Petition Nos.717 & 718 of 2013. 11. Mr. Hashmat Ali Habib, learned ASC for the applicants in CMA No.3540 of 2014 and Mr. Ghulam Mahboob Khokhar, learned ASC - 9 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 for the respondents in C.P.Nos.567 & 584 of 2014 have adopted the arguments of the respondents' counsel referred to above. 12. The functions of telecommunication in Pakistan were being undertaken by the T&T Department of the Federal Government of Pakistan. By the Pakistan Telecommunication Act, 1991 (the Act of 1991), Pakistan Telecommunication Corporation was established with the purpose and function to establish, maintain and operate telecommunication with transfer of assets and liabilities and all employees of T&T Department to the Corporation. Section 9 of the Act of 1991 provided that the employees of T&T Department transferred to the Corporation shall have the same terms and conditions to which they were entitled immediately before such transfer and that the terms and conditions of service shall not be varied by the Corporation to their disadvantage. Subsequently, the Pakistan Telecommunication (Re- Organization) Act, 1996 (the Act of 1996) was promulgated for the re-organization of Pakistan Telecommunication system in Pakistan by establishing Pakistan Telecommunication Authority, Frequency Allocation Board, National Telecommunication Corporation and Pakistan Telecommunication Employees Trust and transfer of telecommunication service to private sector etc. Under Section 34 of the Act of 1996, the Federal Government established a Company known as Pakistan Telecommunication Company Limited incorporated under the Companies Act, 1984, with the principal object of provision of domestic and international telecommunication. Section 35 of the Act of 1996 empowered the Federal Government to issue Vesting Order vesting certain rights and liabilities of the Corporation to the Company from the effective date. The Vesting Order was also to - 10 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 specify the employees of the Corporation to be transferred and become the employees of the Company from the effective date. Sub Section (1) of Section 36 of the Act disentitled the Transferred Employees to any compensation as a consequence of transfer to the Company. The proviso, however, lays down that the Federal Government shall guarantee the existing terms and conditions of service and rights, including pensionary benefits of the Transferred Employees. Sub Section (2) of Section 36 provided that the terms and conditions of service of the Transferred Employees shall not be altered adversely by the Company except in accordance with the laws of Pakistan or with the consent of the Transferred Employees and the award of appropriate compensation. Sub Section (5) of Section 36 provided that in the order vesting property of the Corporation to the Company, the Federal Government shall require the Company to assume responsibility of pensionary benefits of the telecommunication employees and the Company shall not alter such pensionary benefits without the consent of the individuals concerned and the award of appropriate compensation. In terms of Section 35 of the Act of 1996, the Government of Pakistan issued Vesting Order dated 07.02.1996, by which all properties and liabilities of the Corporation were vested in the Company w.e.f. 01.01.1996 and all employees of the Corporation except those transferred to Pakistan Telecommunication Authority, Frequency Allocation Board, National Telecommunication Corporation and Pakistan Telecommunication Employees Trust stood transferred to and become the employees of the Company w.e.f. 01.01.1996. It further provided that w.e.f. 01.01.1996 the liability of Corporation in respect of payment of pension to telecommunication employees shall - 11 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 be transferred to the Pakistan Telecommunication Employees Trust and the Company shall be liable for and assume the responsibility to contribute to the Pakistan Telecommunication Employees Trust the amount determined in accordance with Section 45. The order further provided that the Corporation without being wound up stands dissolved and ceased to exist w.e.f.01.01.1996. 13. From the reading of the Act of 1991 and thereafter of the Act of 1996, it is abundantly clear that the employees of T&T Department were transferred to the Corporation with the terms and conditions of their service similar to the one they were enjoying before such transfer. It is not in dispute before us that the employees of T&T Department, whose case is before us, were transferred to the Corporation and they enjoyed the same terms and conditions of service as were applicable to them as employees of T&T Department. Under the terms and conditions of service, such employees were also entitled to payment of pension on their retirement. On 2nd April, 1994, the Corporation executed a Trust Deed establishing Pakistan Telecommunication Corporation Employees Pension Fund. Para 2 of which reads as follows:- “All departmental employees transferred to the Corporation as defined in section 9 of the Pakistan Telecommunication Corporation Act, 1991 shall be entitled to benefits as defined under the Federal Government Pension Rules as applicable to such employees before the formation of PTC.” By section 44 of the Act of 1996, the Federal Government has established a trust called Pakistan Telecommunication Employees Trust (the Trust). Section 45 of the Act of 1996 made provision for issuing of Vesting Order by the Federal Government of vesting of all assets - 12 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 and such liabilities as are specified in the Trust from the effective date. Section 46 of the Act of 1996 lays down functions and powers of the Trust which, inter alia, provides for making of provision for the payment of pensions to telecommunication employees to the extent of their entitlement with exclusive right to determine the amounts, if any, payable in respect of pension benefits to the telecommunication employees. It has already been mentioned above that by the Vesting Order dated 07.02.1996, inter alia, the liability of payment of pension of telecommunication employees was transferred to the Trust and the Company was liable and has assumed the responsibility to contribute to the Trust, the amounts determined in accordance with Section 45. 14. The question that needs to be addressed is about the status in obtaining of pension by the employees of the erstwhile T&T Department, who were transferred to the Corporation from where they were transferred to the Company. It is clear from the reading of provision of the Act of 1991 so also that of the Act of 1996 that the terms and conditions of service of the Transferred Employees from T&T Department to the Corporation and then to the Company remain unaltered and they continued to be paid the benefits as were admissible to them as employees of T&T Department. There seems to be no dispute until 2009 regarding the entitlement of pension to the employees of erstwhile T&T Department inasmuch as they have been paid pension at the same rate of increase as has been provided by the Federal Government to its employees as is apparent from the record of pension payment submitted by the counsel for the Trust by way of CMA No.6331 of 2014, which shows the payment of pension as follows:- - 13 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 CMA No.6331 of 2014 Pension increased by the Pakistan Telecommunication Company Employees Trust Year(s) Category Percentage 2004-05 (i) Retired before 01.01.96 16% As per GOP (ii) Retired after 01.01.96 8% 2005-06 (i) Retired before 01.01.96 10% as per GOP (ii) Retired after 01.01.96 10% 2006-07 (i) Retired before 01.01.96 20% As per GOP (ii) Retired after 01.01.96 20% 2007-08 (i) Retired before 01.01.96 Per GOP (ii) Retired after 01.01.96 2008-09 (i) Retired before 01.01.96 20% As per GOP (ii) Retired after 01.01.96 20% 2009-10 (i) Retired before 01.01.96 15% As per GOP (ii) Retired after 01.01.96 15% 15. The above chart of payment of pension by the Trust shows that there were in all two categories of employees to whom the pension was being paid by the Trust; (1) who retired before 01.01.1996 and (2) who retired after 01.01.1996. The chart also makes it clear that those who had retired before 01.01.1996 are being paid pension as per the increase announced by the Government of Pakistan while those who had retired after 01.01.1996 being paid pension according to the rate fixed by the Trust. The payment of pension by the Trust until 2009 appears to be consistent with the rate and entitlement of the employees of erstwhile T&T Department as has been amplified from the provisions of the Act of 1991 and the Act of 1996 read with Para 2 of the Trust Deed of 2nd April, 1994, which term was not varied or altered in creation of the Trust rather the same was kept intact. 16. While examining the question in issue we also examined some precedents of this Court in respect to the employees of PTCL, who were initially in employment of T&T Department from where they - 14 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 were transferred to the Corporation and then to the Company. In the case of Divisional Engineer Phones, Phones Division , Sukkur & another V. Muhammad Shahid & others [1999 SCMR 1526], the respondents were appointed Telephone Operators and it was held that “in cases of Corporation created by the Government through statutory instruments if existing employees are transferred to the Corporation in the absence of any provision to the contrary, the Transferred Employees continue to remain in the service of Corporation on the same terms and conditions under which they were working before their transfer to the Corporation. Therefore, if an employee of the Corporation before his transfer to the Corporation was a civil servant, he continues to be a civil servant. In all other cases, where an employee is appointed in the service of the Corporation after the Corporation is established, his service is governed by Service Rules of the Corporation. If such Rules are not statutory, the principal of master and servant governed the relationship between the employee and the Corporation”. In the case of Pakistan Telecommunication Corporation & another V. Riaz Ahmad & 6 others [PLD 1996 SC 222], it was held that the employees of T&T Department transferred to the Corporation were civil servants. In the case of Ejaz Ali Bughti V. PTCL & others [2011 SCMR 333], this Court has held that as there were no statutory rules of service applicable to the employees of the Company and in view of the judgment in the case of Muhammad Mubeen-us-Salam V. Federation of Pakistan [PLD 2006 SC 602], the petitioner was not civil servant and his appeal before the Service Tribunal was not maintainable. In the case of Pakistan Telecommunication Corporation Limited V. Iqbal Nasir & others [PLD 2011 SC 132], though it was held that the Company is a - 15 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 person within the meaning of Article 199 (5) of the Constitution and will be amenable to the writ jurisdiction of the High Court but there being no statutory rules of service applicable to its employees, the writ petition in the High Court was found to be not maintainable. 17. Mr. Shahid Anwar Bajwa, learned ASC for the Company has contended that the case of Masood Ahmed Bhatti & others V. Federation of Pakistan through Secretary, M/O Information Technology & Telecommunication & others [2012 SCMR 152] may not be relied upon by this Court for the reason that such judgment is being reconsidered by this Court. What we understand from this submission of the learned ASC is that a review petition for the review of a reported judgment may be pending in this Court. We may note that until the judgment of this Court is reviewed and some other conclusion is reached other than the one which has already been pronounced by this Court, the same remains in field and operates as a law pronounced by this Court. Therefore, we cannot ignore this case inasmuch as it is a judgment of three members bench of this Court and as per the law of precedent, the same is binding on us. In this case, the appellants were admittedly civil servants and they were transferred from T&T Department to the Corporation and then to the Company. The grievances of the appellants were with regard to promotion, for payment of pensionary benefits and of VSS. The High Court of Sindh has dismissed the constitutional petition filed by the appellants on the ground of non-availability of statutory rules of service applicable to the employees of the Company. This Court, after evaluating various provisions of the Acts of 1991 and 1996 and the Vesting Order dated 07.02.1996 has made following observations :- - 16 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 “14. We may now consider the effect of this transfer of the appellants to PTCL along with the assets and liabilities of the Corporation and the implications of such transfer on the nature of the rules of employment applicable to the appellants from the date (i.e. 1.1.1996) they became employees of PTCL. The provision to section 35(2) of the Reorganization Act provides a clear answer to this controversy. It specifies that even after the transfer of the appellants to PTCL their terms and conditions of service which existed on 1.1.1996, would be the base and bare minimum in matters of their employment with PTCL. These terms and conditions were imposed on PTCL by the Reorganization Act, as a legal obligation and the Vesting Order was issued by the Federal Government “in exercise of powers conferred by section 35” of the Reorganization Act. The Federal Government, it will be noted, had been granted limited powers only; the constraint on it was that the terms and conditions of service of employees of the Corporation could not be varied to their disadvantage. PTCL, as the recipient of the properties and rights of the Corporation, also assumed the liabilities of the Corporation. Such liabilities necessarily included the liabilities owed to the employees, arising from the terms and conditions of their service as these could not be varied to their disadvantage. 15. Thus it is evident that at the moment of transition when the appellants ceased to remain the employees of the Corporation and became the employees of PTCL, they admittedly were governed by rules and regulations which had been protected by the PTC Act. The said rules, therefore, by definition were statutory rules as has been discussed above. PTCL, no doubt, could made beneficial rules in relation to its employees which were in addition to the rules of employment prevailing on 1.1.1996. However, by virtue of the aforesaid proviso, PTCL had no power to “vary the terms and conditions of service” of its employees who were previously employees of the Corporation. “to their disadvantage”. Even the Federal Government was debarred by virtue of section 35 ibid from varying such terms and conditions of service to the disadvantage of the appellants. 16. An easy and uncomplicated test becomes available to us to help determine the status of the employment rules governing the appellants. If the current employer of the appellant viz. PTCL is constrained by legislation such as section 35(2) of the Reorganization Act, and as a consequence, cannot vary the existing rules to the disadvantage of the appellants, because of such legislation, it must follow that such law has the effect of saving the rules which existed - 17 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 when the appellants became employees of PTCL. Such existing rules, having been protected by section 35(2), therefore, can only be categorized as statutory rules. 17. Section 36 of the Reorganization Act also has relevance in determining the controversy which arises in these appeals. Subsection (2) of section 36 gives protection to the terms and conditions of service of employees such as the appellants who stood transferred from the Corporation to PTCL on 1.1.1996. Their terms and conditions of service cannot be altered adversely by PTCL “except in accordance with the laws of Pakistan or with the consent of the transferred employees and the award of appropriate compensation”. When this legal provision is read together with section 35, it becomes abundantly clear that by operation of the Reorganization Act, the terms and conditions of service of the appellants as on 1.1.1996 stood conferred on them as vested rights under the said law”. 18. Thus, in the above case this Court has held that the terms and conditions of service so also the rules of service which were applicable to the T&T Department employees while in employment of the Government of Pakistan will continue to be applicable to them on their transfer to the Corporation and then to the Company. The proposition advanced by Mr. Khalid Javed Khan, learned ASC, that an order granting increase in pension is an executive function based on a policy taking into consideration various factors of inflation and financial conditions, on its face, appears to be correct as the same is based upon the pronouncement of this Court in the case of Akram Ul Haq Alvi V. Joint Secretary (R-II) Government of Pakistan, Finance Division, Islamabad & others [2012 SCMR 106]. However, the question before us is not about the tenor and status of the government order or the order which is passed by the petitioner for increasing the pension on the very entitlement of the respondents to the benefit of increase in pension awarded by the Government. The entitlement of the - 18 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 respondents to the increase in pension, as the one announced by the Government of Pakistan, is to be determined on the basis of the law applicable to their employment. In Masood Ahmed Bhatti’s case (supra), this Court has held that not only the terms and conditions of service of the employees of T&T Department who were transferred to the Corporation and then to the Company will be the same but also the rules of service as were applicable to them as employees of T&T Department. Thus, it becomes clear that the employees of T&T Department who were transferred to the Corporation and then to the Company having retired, they will as per the terms and conditions of service will be entitled to payment of pension also according to the one announced by the Government of Pakistan. Thus if any increase in pension is announced by the Government of Pakistan for its employees, the same will also apply and will be paid to the employees of T&T Department transferred to the Corporation and then to the Company. This view of ours is further fortified by the provision of Section 46 (1) (d) of the Act of 1996 where it is stated that the Board of Trustees of the Trust shall make provision for payment of pension to telecommunication employees to the extent of their entitlement. The very term “to the extent of their entitlement” shows that there are different kinds of employees having different entitlement and provisions for them have to be made accordingly. This is also apparent from the chart shown above where there already existed two kinds of employees, one who have retired before 01.01.1996 and the other who have retired after 01.01.1996 to whom different rate of increase in pension is paid. It is, therefore, not correct to state that there will be redundancy of Section 44 of the Act of 1996 if the - 19 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 Trustees are allowed to make provision for the pension according to their own working. In view of this clear provision in Section 46 of the Act of 1996, we do not find that this Section has any direct nexus with Section 44 of the Act of 1996 nor the redundancy to Section 44 can be attributed. We are here only dealing with cases of those employees, who were employed in T&T Department and transferred to the Corporation and then to the Company and not any other employees. Similarly, we also note that there is no mention in either of the two impugned judgments regarding the question of VSS. We, therefore, do not consider it appropriate to decide this question at this stage. 19. Adverting to the submission of Mr. Shahid Anwar Bajwa, learned ASC, we may note that while the Company may be entitled to fix the terms and conditions of service of its employees so also the provision of pension by the Board of Trustees of the Trust but as discussed above, as regards the employees of T&T Department transferred to the Corporation and then to the Company, their terms and conditions of service stand protected by the provision of Section 9 of the Act of 1991 and Sections 35, 36 and 46 of the Act of 1996 and thus they will be entitled to payment of increase in pension as is announced by the Government of Pakistan. The contribution of the Company to the Pension Fund determined by the Actuary and its payment by the Company does not appear to be of much relevance because the question before us is of entitlement of the respondents to the increase in pension. In the case of Secretary, Government of the Punjab, Finance Department & 269 others V. M. Ismail Tayer & 269 others [2014 SCMR 1336], this Court has held that while on completion to commutation period the civil servant is entitled to - 20 – C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014 payment of full pension. It was noted, and such has been done time and again by this Court that pension is a part of a civil servant’s retirement benefit and is not bounty or an ex-gratia payment but a right acquired in consideration of his past service which was a vested right with legitimate expectation. The right to pension is conferred by law which could not be arbitrarily abridged or reduced except in accordance with law. The aspect of the statutory rules has already been dealt with above and we tend to agree with the rule laid down in the case of Masood Ahmed Bhatti (supra). 20. For the foregoing reasons, we have come to conclusion that the respondents, who were the employees of T&T Department having retired after their transfer to the Corporation and the Company, will be entitled to the same pension as is announced by the Government of Pakistan and that the Board of Trustees of the Trust is bound to follow such announcement of the Government in respect of such employees. Consequently, these petitions are dismissed. CJ. Islamabad J. APPROVED FOR REPORTING *Hashmi* J. Announced in open Court on 12.06.2015 J.

{'id': 'C.P.L.A.565_2014.pdf', 'url': ''}

{'id': 'C.P.L.A.565_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE IJAZ UL AHSAN CIVIL PETITIONS NO.569-K AND 570-K/2016 (Against the judgment dated 13.06.2016 of the High Court of Sindh, Karachi passed in ITRA No.190/2012, Constitutional Petition No.D-2302/2011) Commissioner Inland Revenue In C.P. 569-K/2016 FBR through Commissioner Inland Revenue In C.P. 570-K/2016 …Petitioner(s) VERSUS M/s ICI Pakistan In C.P. 569-K/2016 M/s ICI Pakistan In C.P. 570-K/2016 …Respondent(s) For the petitioner(s): Mr. Muhammad Sarfaraz Metlo, ASC For the respondent(s): Dr. Muhammad Farogh Naseem, ASC Mr. Mahmood A. Sheikh, AOR Date of hearing: 13.03.2017 … ORDER MIAN SAQIB NISAR, CJ.- The respondent company filed its tax returns for the year 2001-02 and the assessment was finalized under Section 62 of the Income Tax Ordinance, 1979 (the Ordinance, 1979) by an order dated 29.05.2002. On 30.12.2004, the Department issued a notice under Section 122(5A) of the Income Tax Ordinance, 2001 (the Ordinance, 2001) to the respondent seeking to amend the assessment order dated 29.5.2002. The respondent replied to this subsequent notice on 8.3.2005. However the Department took no further action upon the notice dated 30.12.2004 which was subsequently withdrawn. Finally, on 07.05.2007, a notice under Section 122(5A) of the Ordinance, 2001 was issued by the Department stating therein that the date of de- merger was not properly appreciated by the assessing officer and CPs 569-K,570-K/16 -: 2 :- thus the assessment order passed on 29.05.2002 is erroneous and prejudicial to the interest of the Revenue. This notice was challenged by the respondents through Writ Petition No.1094/2007 and during the pendency thereof, an assessment order was passed pursuant to the notice dated 07.05.2007. This writ petition was allowed by the Division Bench of the learned High Court of Sindh on 30.05.2007 setting aside the notice dated 07.05.2007 and the assessment order passed pursuant thereto. Civil Appeal No.1598/2007 initiated by the Department was dismissed by this Court vide order dated 29.10.2009 by relying upon the judgment reported as Commissioner of Income Tax Vs. Eli Lilly Pakistan (Pvt) Ltd. (2009 SCMR 1279). There was a lull for a considerable period when on 20.06.2011 the Department issued another notice to the respondents under Section 66 read with Section 66-A of the Ordinance, 1979 intending to amend the notice dated 29.5.2002. Aggrieved of this notice, the respondent filed Constitutional Petition No.2302/2011 before the learned High Court of Sindh which, by considering the law laid down in the judgments reported as Honda Shahrah-e-Faisal Association of Persons, Karachi Vs. Regional Commissioner of Income Tax, Karachi (2005 PTD 1316), Eli Lilly’s case (supra) and Commissioner Income Tax Vs. Islamic Investment Bank (2016 SCMR 816), came to the conclusion that the period of limitation provided under Sections 66 and 66-A of the Ordinance, 1979 is four years and that the notice issued by the petitioners on 20.06.2011 is beyond such period. 2. Learned counsel for the petitioners submits that the said notice was in fact issued under Section 65 of the Ordinance, CPs 569-K,570-K/16 -: 3 :- 1979 and by relying upon Eli Lilly’s case (supra) it is argued that the period of limitation has been provided in Section 65 of the Ordinance, 1979 which is five years and the notice issued on 07.05.2007 is within that period. Suffice it to say that after considering the notice dated 07.05.2007 purportedly issued under the provisions of Section 122(5A) of the Ordinance, 2001, we find that it is akin to the notice/proceedings which the Department would initiate in terms of Sections 66 and 66-A of the Ordinance, 1979 as the said notice was issued on the ground that the assessment order dated 29.05.2002 was erroneous and prejudicial to the interest of the Revenue, the period of limitation for which is four years. We are not persuaded to hold that the notice was issued under Section 65 of the repealed law as the notice dated 07.05.2007 was not issued on the basis of some definite information. Even this is not envisaged by the clear language of the notice itself. Besides, as mentioned earlier this notice was set aside by the learned High Court of Sindh vide order dated 30.05.2007 which order kept intact by this Court. It is to be noted that after the judgment in Eli Lilly’s case (supra), a fresh notice was issued on 20.06.2011 which was challenged by way of a constitution petition before the learned High Court of Sindh and this was set aside vide impugned judgment as being issued far beyond the period of limitation. The judgment in Eli Lilly’s case (supra) has neither provided a new cause of action to the petitioner to issue a notice afresh nor has it in any way extended the period of limitation originally prescribed for such a notice. We do not find there to be any error in such finding warranting any interference. Resultantly, CPs 569-K,570-K/16 -: 4 :- the view set out by the learned High Court is absolutely in accordance with law. Dismissed accordingly. CHIEF JUSTICE JUDGE JUDGE ISLAMABAD. 13th March, 2017. Approved for reporting Mudassar/

{'id': 'C.P.L.A.569-K_2016.pdf', 'url': ''}

{'id': 'C.P.L.A.569-K_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) FESENt: MR. JUSTICE JJAZ UL AHSAN MRS. JUSTICE AYESHA A. MALIK (-3 cIy4iPetitio N0.5796. 5797 of 2021 and CMA No. 11746 of 2021. (On appeal against the judgment dated 2309.2021 passed by the EPA P/os.21 and 26012021) Government of Pakistan through Secretary, Ministry of Defence Rawalpindi and another. Petitioner(s) Versu (in all cases) Farzand Begum and others. . .Respondenqs) (in all cases) For the Petitioner(s): For Respdtsg$1.8 Date of Hearing Mr. Sajid Ilyas Bhattj, Addl. AGP, Mr. Ajmal Raza Bhatti, ASC. Raja Abdul Ghafoor, AOR. (in both cases) Mr. Mudassat Khajid Abbasi, ASC. (in both cases) 09.02.2022 (JR.) ORDER IJAZ UL ARSAN, .5.- This single order shall decide CPLA No.5795 of 2021 and CPLA No.5797 of 2021 as they arise out of the sane impugned judgment and involve common questions of law and fact. 2. The petitioners seek leave to appeal against a judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 23.09.2021 whereby EFA Nos.21 and 26 of 2021 filed by the Petitioners were dismissed. . - Quil Petitions No 5796, 5797 of2022 2 3. Brief facts necessary for disposal of these petitions are that land measuring 30 kanals bearing Khasra No. 1200 situated in Village Saeelah, District Jhelum was initially requisitioned by the Ministry of Defence in the year 1950. Subsequently, such land was acquired through the process of acquisition under the Land Acquisition Act, 1894 and compensation was awarded at the rate of Rs. 120,000/- per marla vide Award dated 07.09.2016. The Respondents were dissatisfied with the Award and challenged the same by way of References which were accepted by the Senior Civil Judge/Referee Court, Jhelum vide judgment and decree dated 06.03.20 18 holding that the Respondents were entitled to receive Rs.480,000/- per marla as compensation alongwith 15% acquisition charges. The petitioners challenged the said judgment and decree through Regular First Appeals which were dismissed. Such dismissal was challenged before this Court through Civil Appeal No.2077 of 2019 which was dismissed vide judgment dated 20.02.2020. 4. The Respondents thereafter initiated execution proceedings during which the petitioners filed an application seeking suspension of the process of execution on the ground that they had taken steps to get the property de-notified and returned to the owners. In support of their stance that the property could be dc-notified reliance was placed on Section 48 of the Land Acquisition Act, 1894 ("the Act"). However, neither the Executing Court nor the High Court agreed with the stance taken by the petitioners that the property could be No.5795 5797.f2o2l 3 de-notifled and the amount of compensation awarded by the Referee Court which was Upheld upto this Court was not Payable if the Property was de-notified 5. The learned Additional Attorney General for Pakistan has argued that the lower fora have overlooked the fact that the land had been acquired for a public purpose but due to non-availability of funds Occupation of the said land by the Military had been abandoned He maintains that in terms of Section 48 of the Act the Government is at liberty to Withdraw from any acquisition that has taken place. He maintains that the de-notification of the land would essentially mean that the property would be restored to its original owners who would be at liberty to dispose it of at its market value hence no prejudice or financial loss is likely to be Caused to the Respondents. 6. On the other hand, learned counsel for the Respondents has defended the impugned judgment. He maintains that the provisions of Section 48 of the Act have correctly been appreciated and interpreted by the High Court, the process of acquisition stands completed Possession has since long been with the P etitioners and the petitioners are Under an Obligationto pay compensation in terms of the judgment and decree of the Executing Court which has been Upheld upto this Court. We have heed the learned Counsel for the Ptie d gone through the record. The Core controversy between Citjj Pet it bits No 796 5797 2021 the Parties revolves around the correct interpretation of Section 48 of the Act which for ease of reference is reproduced below: `48- Comp "' of acquisition Compulso but compensation to be awarded when not completed (1) Except in the Case provided for in section 36, the Executive District Officer (Revenue)) shall be at liberty to Withdraw from the acquisition of any land of which Possession has not been taken. (2) Whenever the Exetjve District (Revenue)) Withdraws from Officer any such the Collector shall determine due the amount of Compensation for the damage Suffered by the Owner in Consequence of the notice or of any Proceedings 'hereunder, and shall Pay such interestedtogetheramount to the person by him with all costs reasonably incurred in the Prosecution of the Proceedings under this Act relating to the said land. apply, (3) The Pro vis i07 of Pan III of this Act shall SO far as compefl5 may be, to the determination of the j0 payable under this section" A bare Perusal of the Section makes it manifestly clear that although the Government has the Power to Withdraw from acquisition of any Property, such Power is not absolute and is circumscribed by an important Prerequisite ely, "poss sion has not been taken by the Government or the acquiring Department". Further, the Powers Under Section 48 of the Act can be exercised only where the execution Proceedings in terms of the Land Acquisition Act, 1894 have not been completed In the instant case, no denialthere is of the fact that not Only the acquisition P roceedings have been completed the Award has been wnounced the Civil Petftio, No 5796, 579/of 2021 S rate of compensation was challenged by the Respondents before a Referee Court which revised the amount of compensation and such enhanced compensation was not only upheld by the High Court but also by this Court. 8. Further, it has not been denied that possession has Since long been with the acquiring Department.We are therefore of the view that acquisition Proceedings for all practical purposes have been Completed together with transfer of Possession. As such, the Power of the Government to withdraw from the acquisition of the property is no longer available and it cannot at this stage be allowed to retrace its steps to undo the entire process which has been going on for years on end. 9. The argument of the learned Law Officer that no prejudice or monetary loss is likely to be suffered by the Respondents who can still sale the property in the open market is not sufficient to alter the legal Position as encapsulated in Section 48 of the Act and any deviation from the same on the basis of admitted facts would amount to departure and deviation from the letter of law for extraneous Considerations which is neither advisable nor permissible under the law. The learned Addl.AGP has not been able to convince us that there is any error, defect or flaw legal or jurisdictional in the impugned judgment of the High Court that may furnish basis, justification or ground for grant of leave to appeal in this matter. Consequentiy, we do not find any merit in these petitions. The dismissed. Leave to appeal is refused. Civil ?etiEons No. 5796, 5797 of 2021 Announced in open Court at Islamabad on 2.02.2_. r° Foing'

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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan CIVIL PETITIONS NO.590, 671 AND 696 OF 2021 [Against the order dated 19.1.2021, passed by the High Court of Sindh, Karachi, in C.P. No.D-2839 of 2017 CP.590 of 2021 Shahzad Shahmir and others Vs. Government of Sindh through Chief Secretary, Sindh Secretariat, Karachi and others CP.671 of 2021 Arshad Mehmood and others Vs. Government of Sindh through Chief Secretary, Karachi and another CP.696 of 2021 Muhammad Rizwan and others Vs. Muhammad Azim and others For the Petitioners : Mr. Muhammad Shoaib Shaheen, ASC (in CP.590 of 2021) Mr. Rafiq Ahmed Kalwar, ASC (in CP.671 of 2021) Mr. Shahab Sarki, ASC (in CP.696 of 2021) Respondents : N.R. (in all cases) Date of Hearing : 12.04.2021 O R D E R GULZAR AHMED, CJ.- An Agreement dated 28.11.2014, was made between the International Development Association (IDA) and the Province of Sindh, called as “Project Agreement”. Clause 8 of the Project Agreement has provided that the Project Development Objective is to raise school participation by improving sector governance and accountability, and strengthening administrative systems, measure student CP.590 of 2021, etc. - 2 - achievement, and the project supports the Sindh Government’s Second Sindh Education Sector Reform Project (SERP-II). The total cost of the project SERP-II is US $2600 million for which the Sindh Government’s financing/share is US $2200 million and remaining US $400 million is financed by the World Bank. The period for the implementation of SERP-II was 2013-17. 2. It seems that the Sindh Government has proceeded to implement the SERP-II with the project cost of US $2600 million in which Singh Government’s own financing/share was US $2200 million and remaining US $400 million was financed by the World Bank. Various appointments for implementation of the Project Agreement seem to have been made by the Government of Sindh and the petitioners were also appointed by the Government of Sindh for the implementation of the Project Agreement. The very appointments, made for the Project Agreement, seems to have come up in the High Court of Sindh at Karachi in C.P. No.D-2839 of 2017, where the High Court gave judgment dated 21.05.2018 noting that process of recruitment of Headmaster/Headmistress (BPS-17) initiated by the Government of Sindh was required to be scrutinized and the report was called. Report dated 13.11.2020 was submitted by the Government of Sindh in which it was found that the appointees did not possess qualification, experience and their age was also not in accordance with law, and the applications for appointment to these posts were obtained even after terminal date for submission of the applications. 3. The petitioners seem to have been employed in the project to the posts of Headmaster/Headmistress in BPS-17 on CP.590 of 2021, etc. - 3 - two years’ contract from 12.07.2017. First thing that is to be noted that the very project was for the period 2013-17, how the appointments of the petitioners were made on 12.07.2017 on contract basis when apparently the project itself has ended. We have asked the learned counsel for the petitioners as to whether the project initiated through Agreement dated 28.11.2014, is continuing, he stated that there is no continuation of the project. The learned counsel for the petitioners further contended that the project has not been taken over by the Singh Government on non- development side of its Budget. 4. This very fact that the project in which the petitioners are alleged to have been appointed is no more in existence and such project having not been taken over by the Sindh Government on the non-development side, we are unable to understand as to how the petitioners were appointed on the posts of Headmasters/Headmistresses in BPS-17 when the very project was not in existence. 5. Be that as it may, the very appointments in BPS-17, as per law, made under Article 242 of the Constitution, have to be made by the Sindh Public Service Commission (SPSC) and no contract employment could have been made on such posts. Thus, the appointments of the petitioners, as observed by the High Court of Sindh, Karachi (the High Court) in its impugned order, were on their very face illegal and, therefore, in our view, no right whatsoever existed with the petitioners to continue with the employment, more so, when the very contract appointments were not in accordance with law. CP.590 of 2021, etc. - 4 - 6. Be that as it may, the High Court has given certain directions in its impugned order dated 19.01.2021 extending some benefits to the petitioners, though we note that such entitlement to the benefits, apparently, was not available to the petitioners. 7. In view of the above, we find no merit in these petitions, which are dismissed and leave refused. CHIEF JUSTICE Bench-I Islamabad 12.04.2021 ‘NOT APPROVED FOR REPORTING’ Mahtab/* JUDGE

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mushir Alam Mr. Justice Faisal Arab Mr. Justice Sajjad Ali Shah Civil Petition No.60-K of 2018 Against the judgment dated 04.12.2017 passed by the High Court of Sindh at Karachi in Const.P. No.S-1862 of 2016. Trading Corporation of Pakistan Petitioner(s) VERSUS Devan Sugar Mills Limited and others Respondent(s) For the Petitioner(s) : Mr.M. Sarfraz Metlo, ASC Mr.K.A. Wahab, AoR For the Respondent(s) : Mr.Khalid Javed Khan, ASC Date of Hearing : 05.09.2018 JUDGMENT Mushir Alam, J-. Instant matter arises out of impugned judgment dated 04.12.2017 whereby order passed by the learned Executing Court/VIth Senior Civil Judge, Karachi South dated 01.11.2016 and learned Additional Sessions Judge Vth, Karachi South in appeal dated 9.11.2016 concurrently dismissing the application under section 47 CPC was set aside and case was remanded to the learned Executing Court to decide the application afresh. 2. In nutshell it appears Appellant filed ejectment proceedings against the respondent-tenant on the ground of personal requirement and default in the payment of rent with effect from 1.8.2008. Learned Rent Controller under section 17(8) of the Civil Petition No.60-K of 2018. 2 Cantonment Rent Restriction Act, 1963 passed tentative rent order directing the Respondent-tenant to deposit the arrear of rent amounting to Rs.23,755,482/- within 30 days from the date thereof and future monthly rent on or before 5th of each month. It appears that the rent as per tentative rent order was not deposited that led to the filing of an application under section 17(9) of the Act, ibid to seek striking off the defence. Learned Rent Controller Karachi, Cantonment on verification of the record that no rent having been deposited in terms of tentative rent order as noted above; struck off the defence and as a consequence respondent-tenant was directed to vacate the demised premises comprise of Tower-A 8th Floor, Block-A, Finance & Trade Centre (FTC), main Shahrah-e-Faisal, Karachi within 30 days vide order dated 17.05.2011, which order was not challenged in appeal, attained finality. 3. On failure of the respondent-tenant to vacate the tenement, the Appellant herein filed Execution Application No.40/2011. After service, the respondent-tenant on 07.12.2011 filed an application under section 12(2) CPC detailing facts and grounds, which according to the tenant led them to believe that terms of ejectment order have been varied, as the rent was being received in instalments, which led them to believe that the Appellant-land lord have waived its right to seek eviction. The application was contested and dismissed through a detailed order dated 07.08.2012 (available at page 117 of the paper book), which order was maintained by the High Court in Constitution Petition No.S-923 of 2012 through the detailed judgment dated 19.08.2016 (available at page 117 of the paper book), which order attained finality. 4. The Respondent instead of vacating the tenement, on 14.10.2016 chose to make another application under section 47 read with section 151 CPC without disclosing that earlier an application under section 12(2) CPC on substantially similar facts and grounds was also dismissed by the Executing Court, which was maintained by the High Court as noted in preceding paragraph. 5. The application under section 47 CPC read with section 151 CPC was dismissed by the learned executing Court/6th Senior Civil Judge, South Karachi vide order dated 01.11.2016 (available at page Civil Petition No.60-K of 2018. 3 71 of the paper book), which order was maintained by the Additional Sessions Judge-V, Karachi South in Civil Revision No.156 of 2016 vide order dated 09.11.2016, (though such order is appealable under section 104(1)(ff) CPC no appeal was filed), against which the respondent preferred Constitution Petition No.S-1862 of 2016 before the High Court. The learned bench of the High Court in consideration of reasons set down in paragraphs No.24 and 25 of the impugned judgment remanded the case to the learned executing Court; which read as follows: “24. The reason of discussing the aforesaid judgments in respect of section 47 and order 21, Rule 2 of Civil Procedure Code is to ascertain that the criteria, reasoning and rational of deciding two applications one under section 12(2) and the other under section 47 of Civil Procedure Code are different and distinct and reasoning of the earlier cannot overlap the reasoning of later. 25. The executing Court while deciding application got influenced by the findings of earlier round in respect of an application under section 12(2) CPC in CP No.923/2012. Findings of the trial Court and Appellate Court should have been based on rationale as to whether there was any compromise to adjust or satisfy the decree to make it unexecutable? Whether there was any compromise between them in respect of a question arising out of suit/application i.e. arrears of rent and eviction? Whether maintenance claim in draft compromise or correspondence was extraneous to the “question arising out of pleadings” hence the trial Court can exercise jurisdiction in terms of Section 47 CPC? Whether an alleged compromise can “still” be certified by the Court under Order 21, Rule 2 CPC, executing the decree excluding the issue of maintenance charges or any other issue not arising out of pleadings?” It was, concluded by the learned bench of the High Court that “ousting the petitioner from availing their remedy, which they could have before executing Court amounts to denial of fair trial” and set aside orders dated 9.11.2016 and dated 01.11.2016 passed by Vth ADJ Civil Petition No.60-K of 2018. 4 Karachi (s) and VIth Sr. Civil Judge respectively the case was remanded to executing Court for passing appropriate order. 6. Learned counsel for the petitioner has vehemently argued that all grounds as urged by the respondent in his application under section 47 CPC were also raised in its earlier application under section 12(2) CPC, nothing new has been added. It was urged that payment of the rent in piecemeal after the defence was struck off, will not wipe out the consequence of ejectment nor indulgence of the appellant to receive rent, which was otherwise overdue and payable will amount to discharge and or satisfaction of ejectment order. It was next urged that subsequent application under section 47 CPC was hit by principles of constructive res-judicata and is otherwise not maintainable. 7. Mr.Khalid Javed Khan, learned ASC for the respondents supports the impugned judgment. It was urged that though concurrent remedies are available to challenge the ex-parte order of striking off the defence. It was urged that the remedies under section 12(2) CPC and that under section 47 CPC are separate and distinct, provide different parameters and reasoning to resist the execution proceedings, such remedy could be invoked alternatively successively and exhausting one may not bar the other remedy. 8. Heard the counsels and perused the record. We have examined the contents of the application under section 12(2) CPC which was filed on 7.12.2011, heard and decided by the executing Court on 7.8.2012 and maintained by High Court on 9.8.2016 and the one filed under section 47 CPC on 14.10.2016. We have noted that facts and ground in both set of the proceedings are substantially same. 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 than 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 Civil Petition No.60-K of 2018. 5 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 2 rule (2) CPC, principles of estoppel as embodied in Article 114 of the Qanoon-e-Shahdat Order 1984 and principles of res-judicata as articulated in section 11 CPC and its explanations. Doctrine of election apply both to the original proceedings/action as well to defences 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/judgement/decree etc. emanating from proceedings of civil nature, which could be challenged/defended under Order 9 rule 13 (if proceeding are ex-parte), section 47 (objection to execution), section 114 (by way of review of an order), section 115 (revision), under Order 21 rule 99 to 103 CPC and section 96 CPC (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 subsequently to venture into other concurrently or coexisting available remedies. In a situation where an application under Order 9 rule 13 CPC and also an application under section 12 (2) CPC seeking setting aside of an ex-parte judgment before the same Court and so also an appeal is filed against an ex- parte judgment before higher forum, all aimed at seeking substantially similar if not identical relief of annulment or setting aside of ex-parte order/judgment. Court generally give such suitor choice to elect one of the many remedies concurrently invoked against one and same ex- parte order/judgment, as multiple and simultaneous proceedings may be hit by principle of res-subjudice (section 10 CPC) and or where one of the proceeding is taken to its logical conclusion than other pending proceeding for the similar relief may be hit by principles of res- judicata. Giving choice to elect remedy from amongst several coexistent and or concurrent remedies does not frustrate or deny right of a person to choose any remedy, which best suits under the given circumstances but to prevent recourse to multiple or successive redressal of a singular wrong or impugned action before the competent Civil Petition No.60-K of 2018. 6 forum/court of original and or appellate jurisdiction, such rule of prudence has been evolved by courts of law to curb multiplicity of proceedings. As long as a party does not avail of the remedy before a Court of competent jurisdiction all such remedies remain open to be invoked. Once the election is made then the party generally, cannot be allowed to hop over and shop for one after another coexistent remedies. In an illustrative case this court in the case of Mst.Fehmida Begum versus Muhammad Khalid and others (1992 SCMR 1908) encapsulated the doctrine of election as follows: “However, it is one thing to concede a power to the statutory forum to recall an order obtained from it by fraud, but another to hold that such power of adjudication or jurisdiction is exclusive so as to hold that a suit filed in a civil Court of general jurisdiction is barred. I am therefore in agreement with my brother that a stranger to the proceedings, in a case of this nature has two remedies open to him. He can either go to the special forum with an application to recall or review the order, or file a separate suit. Once he acts to invoke either of the remedies, he will, on the general principles to avoid a conflict of decisions, ultimately before the higher appellate forums, be deemed to have given up and forfeited his right to the other remedy, unless as held in Mir Salah-ud-Din v. Qazi Zaheer-ud-Din PLD 1988 SC 221, the order passed by the hierarchy of forums under the Sindh Rented Premises Ordinance, leaves scope for approaching the Civil Court.” 9. In the case of Behar State Co-operative Marketing Union Ltd. versus Uma Shankar Sharan and another [(1992) 4 Supreme Court Cases 196] Indian Supreme Court confronted with somewhat identical situation as to availability of plurality of remedies under a statute in paragraph No.6 at page 199 concluded as follows: “6. Validity of plural remedies, if available under the law, cannot be doubted. If any standard book on the subject is examined, it will be found that the debate is directed to the application of the principle of election, where two or more remedies are available to a person. Even if the two remedies happen to be inconsistent, they continue for the person concerned to choose from, until he elects one of them, commencing an action accordingly.” 10. In the light of above discussions, adverting to merits of case in hands, observation of the learned Revisional Court while attending to the question of second remedy under section 47 CPC after Civil Petition No.60-K of 2018. 7 having failed to get any favourable order on application under section 12 (2) CPC is quite apt, it reads as follows: - “Looking to the contents of constitution petition filed by the applicant before the Honourable Court of Sindh. It appears clearly that the facts as regards settlement if any between the parties was submitted in the pleadings so also the cheques through the payments were made were specifically mentioned in the memo constitution petition and it was also argued and urged before the honourable High Court of Sindh but no order favourable to applicant was passed by Honourable Court of Sindh as such it is presumed that such a relief was not granted and it was refused and as such the remedy was available to the applicant was to approach before Honourable Supreme Court of Pakistan for which admittedly the applicant obtained time by moving miscellaneous application in the constitution petition. Now the applicant has again agitated the same issue by moving application under section 47 CPC with delay on 14.10.2016 and here is no explanation as to why this application 47 CPC was not filed at the earliest possible opportunity. Which establishes the fact that the point had already been agitated before the Additional controller of Rent as well as before the honourable High Court of Sindh. The learned executing Court has rightly decided the said application as it was found that the question was earlier decided by Honourable High Court of Sindh as such cannot be agitated before the lower forum.” 11. In this view of the matter, the impugned judgment of the learned bench of the High Court cannot be sustained. Fair trial, does not envisage recourse to successive remedies one after another against one and the same impugned order on substantially same set of facts and pleadings seeking substantially similar relief, as it would be against the doctrine of election, as expounded above. A tenant confronted with ex-parte order striking out its defence resulting in his ejectment order, quite a few remedies may be available against such order; namely Appeal under section 24 of the Cantonment Act, 1963, Application under Order 9 Rule 13 CPC, Application under section 12(2) CPC, application under Order 21 Rule 99 to 103 CPC and not the least application under section 47 CPC all such remedies arm the tenant/ judgment debtor to effectively resist ex-parte ejectment order passed against it. In instant case as noted above respondent-tenant, chose not to file appeal under section 24 of the Act, 1963 against the ejectment order dated 17.5.2011 but had chosen to invoke provisions of section 12 (2) CPC on 07.12.2011, which application was dismissed Civil Petition No.60-K of 2018. 8 on merits by the executing Court on 7.8.2012 and maintained by High Court on 19.8.2016. The Appellant after almost five years from date of ejectment order, ventured to invoke Section 47 CPC on substantially same facts and grounds. Even if it is assumed that grounds as available under section 47 CPC to question executability, discharge or satisfaction of ejectment order passed as a consequence for non- compliance of tentative order, set down different parameter to resist and defend execution of eviction order, then too, all such grounds were very much available when first application under section 12(2) CPC was initially made. Case of the petitioner is squarely covered by explanation IV of section 11 CPC, which reads as follows: “Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” 12. In the instant case no reservation was made or avenue kept open while deciding application under section 12(2) CPC either by executing Court or for that matter by the High Court for the appellant to explore other remedy. Where a judgment debtor fails to raise all objections as may be available at the time when execution was resisted by invoking one out of few other available remedies then he is precluded by his conduct to raise any such objection, and all such objections and challenges, if any, will be deemed to have been raised and decided against him. After exhausting one of the remedies under section 12(2) CPC against the order striking out defence, judgment debtor cannot be allowed to go on expedition to venture another remedy for the same malady, which though available was not invoked, Respondent-tenant cannot be given premium to go on venturing one after another remedy. Permitting such course would be nothing but abuse of the process of law and would amount to encourage multiplicity of proceeding, which cannot be approved. Accordingly, this petition is converted into appeal and allowed. 13. At the conclusion of hearing, learned counsel for the respondent states, if this Court does not concede to the arguments of the Respondent, may consider giving reasonable time to vacate, as it is old tenancy and subject premises is commercial, learned counsel for the appellant has left the matter for Court to decide. In this view of the matter, nine months’ time is granted to the respondent-tenant to Civil Petition No.60-K of 2018. 9 vacate the premises and hand over the peaceful and vacant possession thereof to the appellant. However, subject to payment of regular rent and utility charges. In case of any default, and or failure to hand over vacant and peaceful on or before expiry of period allowed herein, writ of possession, without notice shall be issued with police aid and breaking open the lock. JUDGE JUDGE Karachi, the 5th of Sep., 2018 Syed Farhan Ali Approved for Reporting JUDGE

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED. MR. JUSTICE FAISAL ARAB. MR. JUSTICE IJAZ UL AHSAN. CIVIL PETITIONS NO.606 AND 607 OF 2018 (Against the Judgment dated 07.12.2017 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Intra Court Appeals No.181 and 196 of 2012). Qazi Munir Ahmed. …Petitioner(s) (in both cases) Versus Rawalpindi Medical College and Allied Hospital through its Principal, Rawalpindi and others. Respondents (in CP#606/18) Province of Punjab through Secretary Health Department, Lahore and others. Respondents (in CP#607/18) For the petitioner: Sardar Abdul Raziq Khan, ASC. Syed Rafaqat Hussain Shah, AOR. (in both cases) For the respondents: Mian Abdul Rauf, ASC. Date of Hearing: 06.03.2019. O R D E R IJAZ UL AHSAN, J.- Through this order, we propose to decide CPLA Nos.606 and 607 of 2018 as common questions of law are involved and both petitions arise out of the same impugned judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi. 2. The petitioner seeks leave to appeal against a judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 07.12.2017, through which Intra Court Appeals (ICA Nos.196 & 181 of 2012) filed by the Respondents CIVIL PETITIONS NO.606 AND 607 OF 2018 2 were accepted, the judgment dated 30.08.2012 passed by the learned Single Judge in Chambers was set aside and the constitutional petition (W.P.No.2059 of 2011) filed by the petitioner was dismissed. 3. The brief facts necessary for disposal of this lis are that the petitioner was appointed as an ECG Technician in District Headquarters Hospital, Rawalpindi in 2005 on contract basis. In 2009, his services were terminated. He challenged his termination through a representation which was not decided. He therefore approached the High Court in its constitutional jurisdiction. The High Court ultimately directed the Respondents to decide the petitioner’s representation. This was dismissed by the departmental authority on 06.08.2011. The petitioner challenged the said order through Writ Petition No.2059 of 2011, which was allowed, vide order dated 30.08.2012. The Respondents feeling aggrieved challenged the said judgment through two separate Intra Court Appeals. These were allowed, vide impugned judgment dated 07.12.2017. Hence, these petitions. 4. The learned counsel for the petitioner submits that the Division Bench of the High Court fell in error in reversing the findings of the learned Single Judge in a mechanical manner. He further maintains that the ICA filed by the Rawalpindi Medical College (“RMC”), which was neither a party to the proceedings in the writ petition nor was directly aggrieved of the order dated 30.08.2012, was not competent. CIVIL PETITIONS NO.606 AND 607 OF 2018 3 He further maintains that the ICA filed by the Government of Punjab was barred by time and the learned Division Bench erred in law in entertaining the appeals and ultimately accepting the same. 5. The learned counsel for the Respondents on the other hand has defended the impugned judgment. He has pointed out that even if the appeal filed by the Government of Punjab was barred by time, another appeal filed by RMC was admittedly within time. It is settled law that if two appeals against the same impugned judgment are filed, one of which is within time, the other appeal should also be entertained and decided on merit rather than being dismissed on technical grounds thereby creating legal complications and anomalies. 6. We have heard the learned counsel for the parties and carefully examined the record. There is no denial of the fact that the appeal filed by the RMC was within time. As such, even if the appeal filed by the Government of Punjab was barred by time, the learned Division Bench had legal basis and lawful justification to entertain and decide both appeals on merits. Even otherwise, the order of petitioner’s appointment was found to be void. Further, in terms of the law laid down by this Court in the judgment reported as Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104), no period of limitation runs against a void order. 7. As far as the argument of the learned counsel for the petitioner that RMC could not have filed an appeal, suffice CIVIL PETITIONS NO.606 AND 607 OF 2018 4 it to say that any aggrieved person whether or not he was a party in a lis has the right to approach an appellate forum. Reference in this regard may usefully be made to H. M. Saya & Co. v. Wazir Ali Industries Ltd (PLD 1969 Supreme Court 65). The learned ASC for the petitioner has not been able to convince us either that the appeal filed by the RMC was not competent or that the same was wrongly entertained and decided by the Division Bench. 8. Adverting to the merits of the case, we find that vide letter dated 22.06.2004, the Principal Secretary to the Chief Minister, Punjab had desired that the case of the petitioner for reemployment be placed before the Reemployment Board for consideration on merit. However, it appears that the Medical Superintendent, DHQ Hospital, Rawalpindi without referring the matter to the Reemployment Board, and on his own accord directly appointed the petitioner on contract basis. Such order was clearly in violation of the aforenoted letter as well as beyond the powers of the said office. 9. We have specifically asked the learned counsel for the petitioner that under what authority of the law the Chief Minister had the power to issue directives regarding reemployment of government servants. He has not been able to provide any legally sustainable response to the same. 10. It also appears that the case of one Rizwana Bibi involving identical questions had been dismissed by a Division CIVIL PETITIONS NO.606 AND 607 OF 2018 5 Bench of the High Court. The said matter came up for hearing before this Court in CPLA No.155 of 2010 which was dismissed vide judgment dated 15.02.2010. The points of law involved in the petitioner’s case are the same regarding which findings have already been relieved and law laid down in Rizwana Bibi’s case. As such, the learned High Court was justified in relying on the same and refusing to grant relief to the petitioner. 11. It is also noticed that the petitioner did not implead the Province of Punjab as a party in the constitutional petition. This was despite the fact that the said Government was a necessary and proper party in the case. In the circumstances, even otherwise, the constitutional petition was not competent and was rightly dismissed by the Division Bench. Reference in this regard may usefully be made to Government of Balochistan v. Mir Tariq Hussain Khan Magsi (2010 SCMR 115). 12. We have also noticed that the dispute between the parties related to contract employment. This Court has in various pronouncements settled the law that a contract employee is debarred from approaching the High Court in its constitutional jurisdiction. The only remedy available to a contract employee is to file a suit for damages alleging breach of contract or failure to extend the contract. Reference in this behalf may be made to Federation of Pakistan v. Muhammad Azam Chattha (2013 SCMR 120), where it has been held that it is a cardinal principle of law that a contract employee cannot CIVIL PETITIONS NO.606 AND 607 OF 2018 6 press for reinstatement to serve for the left over period and can at the best claim damages to the extent of unexpired period of his service. Therefore, it was correctly held that the petitioner approached the wrong forum in the first place and the learned Single Judge had exceeded his jurisdiction by interfering in a purely contractual matter. 13. The learned counsel for the petitioner has not been able to show us any legal, procedural or jurisdictional error, defect or flaw in the impugned judgment that may require interference by this Court in exercise of its jurisdiction under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973. The impugned judgment of the Division Bench is well reasoned, based on settled principles of law on the subject and the conclusions drawn are duly supported by the record. We are therefore not inclined to grant leave to appeal in this matter. 14. For the foregoing reasons, these petitions being devoid of merits stand dismissed. Leave to appeal is refused. JUDGE JUDGE JUDGE ISLAMABAD. 06.03.2019. ZR/* ‘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 Asif Saeed Khan Khosa Mr. Justice Sh. Azmat Saeed Mr. Justice Faisal Arab Mr. Justice Munib Akhtar Civil Petition No. 632 of 2018 (Against the judgment dated 31.01.2018 passed by the High Court of Balochistan, Quetta in Civil Petition No. 1300 of 2017) Tallat Ishaq …Petitioner versus National Accountability Bureau through its Chairman, etc. …Respondents For the petitioner: Syed Iftikhar Hussain Gillani, Sr. ASC For the respondents: Mr. Haider Ali, Additional Prosecutor-General Accountability Date of hearing: 01.10.2018 JUDGMENT Asif Saeed Khan Khosa, J.: Criminal Miscellaneous Application No. 2941 of 2018 This miscellaneous application is allowed and the documents appended therewith are permitted to be brought on the record of the main petition. Disposed of. Civil Petition No. 632 of 2018 2 Civil Petition No. 632 of 2018 2. Through this petition Tallat Ishaq petitioner has sought leave to appeal against the judgment dated 31.01.2018 passed by a learned Division Bench of the High Court of Balochistan, Quetta in Constitution Petition No. 1300 of 2017 whereby post-arrest bail was refused to him in Reference No. 6 of 2017 filed by the National Accountability Bureau, Balochistan, Quetta against him and others under section 18(g) read with section 24(b) of the National Accountability Ordinance, 1999. 3. We have heard the learned counsel for the parties at some length and have gone through the relevant record of the case with their assistance. 4. It has been alleged by the prosecution that in his capacity as an Office Superintendent in the office of the Director Development, Quetta Division the petitioner has acquired assets in his own name and also in the names of his wife and others and such acquisition of assets was beyond the known sources of income of the petitioner. According to the prosecution the petitioner has acquired seventeen immovable properties worth Rs. 9,33,60,982/- and he also possesses six vehicles worth Rs. 1,40,62,500/-. We note that in grounds (I) and (J) taken in the memorandum of the present petition the petitioner has taken contradictory stands inasmuch as on the one hand he has maintained that the relevant properties were purchased by somebody else through payments made by that person through cheques and it is that person who is the owner of those properties but in the same breath the petitioner has also maintained that he had enough means to purchase the relevant properties. The impugned judgment passed by the High Court shows that the High Court had felt satisfied that sufficient material was available on the record of investigation prima facie establishing that reasonable grounds existed to believe in the petitioner’s involvement in the alleged offence. In that backdrop instead of seriously pressing this petition on the merits of the petitioner’s Civil Petition No. 632 of 2018 3 case the learned counsel for the petitioner has mainly argued that the petitioner was arrested in connection with this case on 01.08.2017 but his trial has not so far been completed which delay entitles the petitioner to be admitted to bail during the pendency of his trial. In this connection the learned counsel for the petitioner has relied upon the provisions of section 16(a) of the National Accountability Ordinance, 1999 according to which the trial of such a case is to be conducted on a day to day basis and has to be disposed of by an Accountability Court within a period of thirty days. Relying upon the judgments handed down by this Court in the cases of Aga Jehanzeb v. National Accountability Bureau and others (2005 SCMR 1666), Muhammad Nadeem Anwar and another v. National Accountability Bureau and others (PLD 2008 SC 645), Anwarul Haq Qureshi v. National Accountability Bureau and another (2008 SCMR 1135) and Asfandyar Khan Kakar v. Accountability Court, Quetta and another (unreported order passed by this Court on 06.09.2017 in Civil Petition No. 2920 of 2017) he has argued that on account of failure of the trial court to conclude the petitioner’s trial within a period of thirty days bail is to be granted to him “automatically” as held by this Court in the above mentioned precedent cases. As against that the learned Additional Prosecutor-General Accountability appearing for the respondents has submitted that it has already been held by this Court in many cases that the provisions of section 16(a) of the National Accountability Ordinance, 1999 are merely directory in nature and non-compliance of the said provisions does not entitle an accused person to claim bail as of right and in support of his submissions he has referred to the cases of Faisal Hussain Butt v. The State and another (2009 SCMR 133), Nisar Ahmed v. The State and others (PLD 2016 SC 11), Khalid Humayun v. The NAB through D.G. Quetta and others (PLD 2017 SC 194) and Chairman NAB, Islamabad v. Bakhat Zameen and another (unreported judgment of this Court passed on 26.08.2016 in Civil Petition No. 1542 of 2016). Civil Petition No. 632 of 2018 4 5. As this petition has not seriously been pressed by the learned counsel for the petitioner on the merits of the petitioner’s case and as some judgments/orders passed by this Court in different cases in the past in respect of the provisions of section 16(a) of the National Accountability Ordinance, 1999 are not being understood in their correct perspective, therefore, we have decided to clarify the true import and scope of the said provisions after considering all the precedent cases available on the subject so far and to render an authoritative pronouncement on the issue. 6. Section 9(b) of the National Accountability Ordinance, 1999 ousts the jurisdiction of all Courts to grant bail to any person accused of committing an offence under the said Ordinance and it provides as follows: “All offences under this Ordinance 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 shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance.” However, in the case of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607) this Court had clarified that a statutory ouster of jurisdiction of all Courts could not affect the jurisdiction of a High Court to grant bail in such cases under Article 199 of the Constitution. This Court had observed in that case as under: “197. It was held in the case of Zafar Ali Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution “remain available to their full extent …. Notwithstanding anything contained in any legislative instrument enacted by the Chief Executive.” Whereas, section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under sections 426, 491, 497, 498 and 561-A or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of 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 Procedure Code, section 9(b) of the NAB Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended suitably.” Civil Petition No. 632 of 2018 5 After that clarification by this Court it is now settled that in an appropriate case a person accused of an offence under the National Accountability Ordinance, 1999 may approach a High Court for his bail by invoking Article 199 of the Constitution. 7. Section 16(a) of the National Accountability Ordinance, 1999 provides that a trial of an offence under the said Ordinance ought to be concluded within thirty days. The said section reads as follows: “Notwithstanding anything contained in any other law for the time being in force an accused shall be prosecuted for an offence under this Ordinance in the Court and the case shall be heard from day to day and shall be disposed of within thirty days.” On the strength of the said statutory requirement regarding conclusion of a trial of an offence under the National Accountability Ordinance, 1999 “within thirty days” the learned counsel for the petitioner has argued that the petitioner was arrested in connection with this case on 01.08.2017 but his trial has not so far been completed which delay entitles the petitioner to be admitted to bail “automatically” till the conclusion of his trial. For advancing this argument the learned counsel for the petitioner has relied upon the cases of Aga Jehanzeb v. National Accountability Bureau and others (2005 SCMR 1666), Muhammad Nadeem Anwar and another v. National Accountability Bureau and others (PLD 2008 SC 645), Anwarul Haq Qureshi v. National Accountability Bureau and another (2008 SCMR 1135) and Asfandyar Khan Kakar v. Accountability Court, Quetta and another (unreported order passed by this Court on 06.09.2017 in Civil Petition No. 2920 of 2017). In order to examine whether the learned counsel’s understanding of the said precedent cases is correct or not it is necessary to take up the said cases one by one. 8. In the case of Aga Jehanzeb v. N.A.B. and others (2005 SCMR 1666) the petitioner facing a trial before an Accountability Civil Petition No. 632 of 2018 6 Court was in continuous custody for the last two years, the complete Challan had not yet been submitted in the case and the petitioner’s trial was not in sight. The High Court had dismissed a Writ Petition filed by the petitioner seeking bail and a direction had been issued by the High Court to the investigating agency to submit the Challan before the trial court within a fortnight and a direction was also issued by the High Court to the trial court to conclude the trial expeditiously, possibly on day to day basis. When the petitioner approached this Court for his bail the matter was disposed of by this Court in the following terms: “When questioned that under the NAB Ordinance trial is to conclude within 30 days Mr. M. Ibrahim Satti, Advocate Supreme Court submitted that this time period is not mandatory but directory. For the time being we would refrain from expressing any opinion as to whether the timeframe is mandatory or directory, but would direct that after submission of challan in this case on 7th of May, 2003 if the trial does not commence or conclude within 30 days from the said date, petitioner would automatically become entitled to the grant of bail subject to his furnishing bail bonds in the sum of Rs. five millions with one surety in the like amount to the satisfaction of the trial Court at Lahore.” We find that the learned counsel for the petitioner in the present case is not justified in concluding from the said precedent case that in every case where trial of an offence under the National Accountability Ordinance, 1999 is not concluded within thirty days the accused person becomes entitled to bail “automatically”. In the precedent case mentioned above the accused person was behind the bars for the last about two years and instead of allowing bail to him this Court had fixed a target date for commencement or conclusion of his trial and it was ordered that in case of failure of the trial court to meet that target fixed by this Court the accused person would “automatically become entitled to the grant of bail”. In the said case, in view of its peculiar facts, the accused person was held to be entitled to bail if the target fixed by this Court was not met and the target fixed by section 16(a) of the National Accountability Ordinance, 1999 was not the determining factor in that case. Civil Petition No. 632 of 2018 7 9. In the case of Muhammad Nadeem Anwar and another v. National Accountability Bureau and others (PLD 2008 SC 645) the petitioners facing a trial before an Accountability Court had spent about two years and eight months in jail and an earlier direction issued by this Court for conclusion of the trial as early as possible, preferably within a period of ninety days, had not been complied with. In that peculiar backdrop this Court had admitted the petitioners to bail with the following observations: “6. This Court vide order dated 22-9-2006 had directed learned trial Court to proceed with the trial expeditiously and conclude the proceedings as early as possible, preferably within a period of ninety days. But according to the learned counsel for the petitioners only 9 witnesses out of 58 have been examined. In this view of the matter, we without touching the merits of the case are of the view that the allegations levelled against petitioners would only be determined at the conclusion of trial, which is not yet concluded. The N.A.B. Ordinance was promulgated in order to provide effective measures of detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power of authority, misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto. The object of N.A.B. Ordinance as is evident in its preamble is to provide expeditious trial of the scheduled offences within the shortest possible time. --------------------- 8. The object of criminal law is to ensure availability of the accused to face trial and not to punish him for offence allegedly pending final determination by a competent Court of law. It is well settled principle of law that grant of bail cannot be withheld as punishment on accusation of non-bailable offence against an accused. An accused is entitled to expeditious and inexpensive access to justice, which includes a right to fair and speedy trial in a transparent manner without any unreasonable delay. This intention has been reassured in section 16 of the N.A.B. Ordinance laying down criteria for day to day trial and its conclusion within 30 days. But in the instant case such object does not appear likely to be achieved anywhere in the near future and would not constitute a bar for grant of bail to the petitioners. The truth or otherwise of charges levelled against petitioners would only be determined at the conclusion of trial after taking into consideration the evidence adduced by both the parties. It was held by this Court in the case of Aga Jehanzeb v. N.A.B. & others (2005 SCMR 1666) that if trial of case is not concluded within 30 days from date of submission of challan, accused would automatically become entitled to grant of bail. 9. In view of above discussion, we are of the view that petitioners are entitled to the grant of bail pending conclusion of trial. Accordingly, both the petitions are converted into appeals and are allowed.” Civil Petition No. 632 of 2018 8 It appears that while deciding the said case this Court was not properly assisted as far as the background of the case of Aga Jehanzeb v. N.A.B. and others (2005 SCMR 1666) was concerned. It was not pointed out to the Court that in the case of Agha Jehanzeb, in view of the unconscionable delay and incarceration of the petitioner in that case for about two years, the direction regarding automatic entitlement to bail was issued with reference to the direction of this Court regarding conclusion of the trial within a specified period of time and not with reference to the period of conclusion of trial mentioned in section 16(a) of the National Accountability Ordinance, 1999. Even in this case of Muhammad Nadeem Anwar and another the petitioners had been admitted to bail on account of an inordinate delay in their trial in the backdrop of a failure of the trial court to comply with this Court’s direction in respect of conclusion of the trial within a specified period. In this case only the spirit of section 16(a) of the National Accountability Ordinance, 1999 qua expeditious conclusion of a trial was mentioned but that provision was not made the basis of admission of the petitioners to bail. 10. The next case relied upon by the learned counsel for the petitioner was that of Anwarul Haq Qureshi v. National Accountability Bureau and another (2008 SCMR 1135) wherein the petitioner was admitted to bail by this Court because he was not a public servant, he had remained behind the bars for about a year and a quarter, no progress had been made in his trial and on account of a violation of the provisions of section 24(d) of the National Accountability Ordinance, 1999 his arrest was illegal. In that background this Court had observed as follows: “On perusal of above provision of law, it is clear that a person cannot be detained for the purpose of investigation/inquiry for a period exceeding ninety days and for every remand, reasons have to be recorded. Petitioner is in judicial lock up since his arrest i.e. 20-11-2006, whereas, as pointed out by learned Addl. Prosecutor General NAB reference was filed on 4-6-2007 but no progress whatsoever has taken place towards the conclusion of trial. This Court in the case of Asif Sharif v. Chairman, NAB 2004 SCMR 1805 granted bail to accused against whom the reference was filed after about two years from date of his arrest. It was also held Civil Petition No. 632 of 2018 9 in the case Aga Jehanzeb v. NAB and others 2005 SCMR 1666 that if trial of case is not concluded within 30 days from date of submission of challan, accused would automatically become entitled to grant of bail. This Court has also held in the case of Abdul Qadir v. Federation of Pakistan through Secretary Ministry of Interior, Government of Pakistan and others 2002 SCMR 1478 that conveyance of the grounds and substance on the basis of which the accused is arrested, is the first essential ingredient of section 24(d) of the Ordinance which is mandatory in nature and has to be complied with in letter and spirit as the same is based on constitutionally guaranteed right providing safeguards as to arrest and detention of a person embodied in Article 10 of the Constitution of Pakistan, 1973. Non-compliance of such provisions of the Constitution and the Ordinance would render the arrest and detention illegal.” It appears that in that case also the peculiar background of the case of Aga Jehanzeb was not pointed out to this Court and bail was granted to the petitioner primarily on the basis of long delay and illegality of his arrest rather than on the basis of the provisions of section 16(a) of the National Accountability Ordinance, 1999. 11. The last of the precedent cases relied upon by the learned counsel for the petitioner was that of Asfandyar Khan Kakar v. Accountability Court, Quetta and another (unreported order passed by this Court on 06.09.2017 in Civil Petition No. 2920 of 2017). In the order passed by this Court in that case the merits of the petitioner’s case were discussed in the earlier part of the order and the case was found to be a fit case for admission of the petitioner to bail on the merits. It was then observed in that order as under: “8. We are shocked to see that investigation commenced years back and at the conclusion Reference was filed in the trial court but NAB has failed to produce its witnesses and conclude the trial albeit the mandatory provision i.e. Section 16 of the NAB Ordinance stipulates the outer limit for conclusion of the trial as thirty days but we have yet to lay hands on a single case throughout Pakistan right from the date of inception of the NAB that in any such case trial was completed within the statutory period. This lethargic and indifferent rather negligent attitude on its behalf is highly deplorable and is deprecated. --------------------- 10. In view of the facts and circumstances discussed above when the case of the petitioner is one of further probe and because co-accused whose case was on worst pedestals have been granted bail how the petitioner can be detained and that too for indefinite period because till date only one witness has been Civil Petition No. 632 of 2018 10 produced by the NAB and there is a long list/calendar of witnesses in the case. Accordingly, this petition is converted into appeal and the same is allowed. The petitioner is granted bail subject to furnishing his bail bond in the sum of Rs. 50,00,000/- (Rupees Five Million only) with two sureties in the like amount to the satisfaction of the trial court concerned.” In the said case bail was allowed to the petitioner by this Court essentially on the merits of his case and the shocking delay in conclusion of his trial and the “mandatory” nature of the provisions of section 16 of the National Accountability Ordinance, 1999 had been referred to as additional factors for the relief of bail. It was not elaborated by this Court in the said order as to why the provisions of section 16 of the National Accountability Ordinance, 1999 were being referred to as “mandatory”. 12. It is quite clear from the examination of the precedent cases relied upon and referred to by the learned counsel for the petitioner that “automatic” entitlement to bail upon expiry of thirty days after submission of the Challan in the trial court was ordered by this Court in the case of Aga Jehanzeb (supra) only in the context of failure to comply with an earlier direction of this Court regarding conclusion of the trial within the period specified by this Court and without reference to section 16(a) of the National Accountability Ordinance, 1999 but in some of the later cases the matter of automatic entitlement to bail upon expiry of thirty days after submission of the Challan was lifted out of context and erroneously attributed to the case of Aga Jehanzeb. We may, therefore, observe with deep reverence that the said later cases do not qualify as good precedents on the issue before us. 13. Adverting now to the precedent cases referred to by the learned Additional Prosecutor-General Accountability appearing for the respondents we note that in the case of Faisal Hussain Butt v. The State and another (2009 SCMR 133) the petitioner had remained in jail for over one year in connection with a Reference filed by the National Accountability Bureau but on account of his trial likely to commence within the next few days his petition for Civil Petition No. 632 of 2018 11 bail was dismissed by a High Court and the order passed by the High Court in that regard was upheld by this Court with the following observations: “3. We have heard the arguments of learned counsel for the parties and perused the available record. As mentioned above, the allegation against the petitioner is that he along with his co- accused misappropriated huge amount (Rs. 298.000 million) from Allied Bank Limited where he was serving as Incharge C.D. Department. The main ground for bail is delay in trial. Admittedly his co-accused (Tasneem Akhtar, Faisal Hussain Butt, Saghir Iqbal Goraya and Tahir Awais) with similar allegation are in judicial lock-up and facing trial. Learned Senior Prosecutor- General, NAB/respondent No.2 submits that petitioner and afore- mentioned co-accused opened accounts of various persons and prepared forged record and obtained about rupees twelve crores through on line process from different Branches of the country without depositing any amount. Further submits that case is fixed on 17-11-2008 for trial. In these circumstances, we do not find it a fit case for grant of bail to the petitioner. The impugned judgment is just and proper. Learned counsel for the petitioner has not been able to point out any illegality or infirmity in the impugned judgment so as to warrant interference by this Court. As such this petition has no force which is accordingly dismissed and leave refused. However, learned trial Court is directed to decide the case within five months under intimation to the Deputy Registrar of this Court at Lahore Branch Registry. It is made clear that if case is not decided within aforesaid period, the petitioner may file fresh writ petition for bail before learned High Court.” In the said case bail was refused to the petitioner despite the provisions of section 16(a) of the National Accountability Ordinance, 1999 and the period fixed therein for conducting and concluding a trial. 14. The next case referred to by the learned Additional Prosecutor-General Accountability was the case of Nisar Ahmed v. The State and others (PLD 2016 SC 11). The said case was not a case under the National Accountability Ordinance, 1999 but was a case of murder and murderous assault, etc. wherein the accused person had remained behind the bars for a period of about two years and eight months and repeated directions issued by the High Court regarding expeditious disposition of the trial could not be complied with by the trial court. This Court declined bail to the accused person by observing as under: Civil Petition No. 632 of 2018 12 “Neither non-compliance of the directions issued to the trial Court to conclude the trial expeditiously or within some specified time can be considered as valid ground for grant of bail to an accused, being alien to the provisions of section 497, Cr.P.C., nor filing of direct complaint will have any bearing as regards earlier bail refusing orders, which have attained finality, unless some fresh ground could be shown by the petitioner for consideration of his request for bail afresh, which is lacking in the present case.” The said case followed a principle already laid down by this Court in some earlier cases that non-compliance of a direction issued by a High Court, or even by this Court, regarding conclusion of a trial within a specified period of time does not ipso facto or “automatically” entitle an accused person to be admitted to bail in a criminal case. 15. The next case in the line was the case of Khalid Humayun v. The NAB through D.G. Quetta and others (PLD 2017 SC 194) wherein the accused person seeking bail had remained in custody for a period of about nine months and still no Reference had been filed against him by the National Accountability Bureau before an Accountability Court. The allegations levelled in that case pertained to embezzlement of Rs. 658,550,424/- which amount was recovered in cash from physical possession of an accused person. This Court refused bail to the accused person with the following observations: “5. This petition is in essence a bail application therefore it will not be appropriate to undertake a detailed examination of the facts, particularly when the reference under the NAB Ordinance has still not been filed. However, there is sufficient prima facie material on the record to suggest that the petitioner had exercised his authority to enrich himself and a number of persons have also implicated him as the principal beneficiary of the defalcated amounts, but we do not want to make any further observation in this regard as it may prejudice the case of either party.” In view of the prima facie strength of the prosecution’s case against the said accused person the length of his custody or the delay in filing a Reference against him were not found by this Court to be worth any consideration. Civil Petition No. 632 of 2018 13 16. The last precedent case relied upon by the learned Additional Prosecutor-General Accountability was the case of Chairman NAB, Islamabad v. Bakhat Zameen and another (unreported judgment of this Court passed on 26.08.2016 in Civil Petition No. 1542 of 2016). In that case an accused person facing a trial under the National Accountability Ordinance, 1999 was admitted to bail by a High Court on the grounds that he had already spent about 13 months in jail, during that period the prosecution had produced 14 witnesses out of 31 witnesses to be produced by it, only 6 adjournments had been obtained by the accused person during the trial and, thus, he was entitled to be admitted to bail on the ground of statutory delay. This Court had cancelled that accused person’s bail and it was observed by this Court as under: “4. Before reverting to the facts of the case as regards delay or otherwise in the proceedings of the trial before the Accountability Court and the merits of the findings of the learned Division Bench recorded in the impugned order, we would like to make it clear that the provisions of section 497, Cr.P.C. are not as such applicable for the purpose of grant of bail to an accused facing charge/trial under the Ordinance of 1999. However, in appropriate cases, the question of delay in the conclusion of trial, depending upon the facts and circumstances of each case on its own merit, has been considered by the superior Courts on the yardstick of hardship vis-à-vis scheme of Articles 4 and 15 of the Constitution. Thus, ipso facto, application of principles for grant of bail embedded in section 497, Cr.P.C., including the provision of statutory delay, is devoid of any legal force. 5. Reverting to the facts of the present case, we have noticed that the observations of the learned Division Bench that respondent No. 1 has been attributed only six adjournments during the ten months period of trial before the Accountability Court, is result of patent misreading of record, ---------------------. It will not be out of context to mention here that even otherwise the practice of making mathematical calculations, for ascertaining the actual period of delay attributable to the prosecution or the accused for the purpose of computing the period of statutory delay has not been approved by this Court, as even delay on few dates of hearing at the instance of an accused can be fatal for this purpose, irrespective of the actual time wasted on that account. More particularly in the cases where accused is being tried under the Ordinance of 1999, which is a special law and specifically bars grant of bail to an accused person by virtue of sections 3 and 9(b), which respectively read as under:- --------------------- 6. The above discussion clearly goes to show that grant of bail to respondent No. 1 through impugned order of the learned Division Bench of the Peshawar High Court, Peshawar is result of misreading of record of the proceedings before the NAB Court as Civil Petition No. 632 of 2018 14 well as erroneous understanding of relevant provisions of law in this regard. Thus, mere fact that in case an accused has remained in custody for a period of 13 months will not be sufficient to hold that it is a case of hardship within the parameters as defined by this Court in this regard in its various earlier pronouncements. For further guidance in this regard, reference can be made to the cases of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) and Himesh Khan v. The National Accountability Bureau, Lahore (2015 SCMR 1092).” The said case had gone a long way in clinching the issue that mere delay in conclusion of a trial or longevity of the period of incarceration of an accused person could not by itself entitle an accused person to bail in a case under the National Accountability Ordinance, 1999. 17. Our own research shows that apart from the above mentioned precedent cases cited before us by the learned counsel for the parties there are some other reported cases decided by this Court which also throw some light on the issue under discussion. In the case of Anwar Saifullah Khan v. The State and 3 others (2001 SCMR 1040) bail was allowed to the accused person because prima facie he had a good case on merits, he had already been admitted to bail in many other References filed against him by the National Accountability Bureau, he had already spent about a year and a quarter in jail and conclusion of his trial was not in sight. 18. In the case of Muhammad Saeed Mehdi v. The State and 2 others (2002 SCMR 282) the accused person was admitted to bail because prima facie he had a good case on the merits, he had spent about a year and a half behind the bars and his trial had not even commenced as yet. 19. The accused person in the case of Ch. Zulfiqar Ali v. The State (PLD 2002 SC 546) was admitted to bail by this Court because section 16(a) of the National Accountability Ordinance, 1999 envisaged conclusion of a trial within a period of thirty days whereas the trial of that case had not concluded in nine months and the accused person had remained in custody for the last about twenty-seven months. The delay in conclusion of the trial having Civil Petition No. 632 of 2018 15 been found by this Court to be inordinate the accused person was found to be entitled to bail. 20. In the case of Muhammad Jahangir Badar v. The State and others (PLD 2003 SC 525) this Court had referred to and pressed into service an “exceptional principle” quite relevant to the issue at hand and, therefore, it is important to reproduce some parts of the order passed in that case: “6. It is an admitted fact that after arrest of the petitioner on 21st August, 2001 Reference was submitted on 3rd November, 2001 and thereafter the case was taken up for hearing for more than 40 occasions but only two witnesses have been examined. Summary of the Court proceedings is reproduced below:- --------------------- 7. There is no cavil with the proposition that the State machinery has a right to arrest the culprits and put them to trial for the purpose of establishing guilt against them but it has not been bestowed with an authority to play with liberty and life of an accused under detention because no one can be allowed to remain in custody for an indefinite period without trial as it is a fundamental right of an accused that his case should be concluded as early as could be possible particularly in those cases where law has prescribed a period for the completion of the trial. As in the instant case under section 16(a) of the Ordinance the Court is bound to dispose of the case within 30 days. It may be noted that inordinate delay in the prosecution case if not explained, can be considered a ground for bailing out an accused person depending on the nature and circumstances on account of which delay has been caused as has been held in the case of Riasat Ali v. Ghulam Muhammad and State (PLD 1968 SC 353). Relevant para. therefrom is reproduced hereinbelow:-- “Inordinate delay in the prosecution of a case, if not explained by the prosecution amounting to an abuse of the process of law, can be considered as a ground for bailing out an accused person even in a murder case depending on the nature of the delay and the circumstances that have caused it. The prosecution is expected to proceed with its case with all dispatch eliminating every avoidable delay in order to bring it to a close and thus to determine the fate of an accused person which hangs in the balance as long as the proceedings do not terminate one way or the other. The prosecution can be permitted to enlist the will of the Court on its side directly or indirectly prolonging the worries and harassment of and accused person which are inevitably caused by his protracted detention without trial. Leisurely steps taken in filing the challan, tardy and halting production of evidence or seeking of unnecessary adjournments, except those necessitated by force of circumstances must be strongly deprecated. But delay in the prosecution of a case or the procrastination of the Civil Petition No. 632 of 2018 16 proceedings in a trial furnishing as a ground for bail have to be weighed and judged in each case on its own merits.” The above view consistently is being followed by this Court. Reference if need be, can be made to judgments reported (i) Nazir Hussain v. Ziaul Haq and others (1983 SCMR 72), (ii) Ashiq Hussain and 3 others v. The State (1989 SCMR 1580), (iii) Anwar Saifullah Khan v. The State and 3 others (2001 SCMR 1040), (iv) Ch. Zulfiqar Ali v. The State (PLD 2002 SC 546). Relevant para. from the last mentioned judgment is reproduced hereinbelow:-- “9. Under section 16(a) of the Ordinance, all persons accused of a scheduled offence are exclusively triable by the Courts established under the Ordinance and the cases have to be heard from day to day and disposed of within 30 days but in the instant case trial has not been concluded in 9 months whereas the petitioner is in custody for the last about 27 months. Although delay in disposal of the case was attributed by both the parties to each other but the order sheet of the trial Court shows that both the parties have been taking adjournments, therefore, both the parties were responsible for delay in disposal of the case. Notwithstanding the merits of the case, the inordinate delay in disposal of the trial is a good ground recognized by the Court in various judgments holding the same to be abuse of process of the Court and treating it as sufficient ground for grant of bail.” In the above-noted case bail was granted to Zulfiqar Ali petitioner because he remained in custody for 27 months and the delay in the conclusion of trial was attributed to both the parties. Against the above prevailing consistent view only one exceptional principle can be pressed into service namely that if the trial of the case has commenced then instead of releasing the accused on bail direction should be made for expeditious disposal of the case by adopting certain modalities to ensure that the accused is not detained further for an indefinite period. Reference in this behalf is made to the case of (i) Allah Ditta and others v. The State (1990 SCMR 307) and (ii) Iftikhar Ahmad v. The State (1990 SCMR 607). Under such circumstances we are of the opinion that in the instant case as well such a device is required to be adopted, because prima facie involvement of the petitioner in the case cannot be overruled at this stage without commenting on merits of the case in depth so the prosecution may also get a final opportunity to conclude the case within the time which will be fixed by this Court and at the same time to ensure that the accused is not kept in custody for an indefinite period because the trial of the case has already commenced and statements of two witnesses have been recorded, and a good number of documents have also come on record so far. Therefore following the observations of this Court in the case of Ashok v. The State (1997 SCMR 436) the trial Court is directed to complete the trial within 30 days by holding proceedings of the case on day to day basis and if even then the trial is not concluded then the accused shall be liable to be released on bail by the trial Curt subject to surety which has already been specified in the short order.” Civil Petition No. 632 of 2018 17 The “exceptional principle” pressed into service by this Court in that case was that “if the trial of the case has commenced then instead of releasing the accused on bail direction should be made for expeditious disposal of the case by adopting certain modalities to ensure that the accused is not detained further for an indefinite period” and the same “device” was adopted “because prima facie involvement of the petitioner in the case cannot be overruled at this stage without commenting on merits of the case in depth so the prosecution may also get a final opportunity to conclude the case within the time which will be fixed by this Court and at the same time to ensure that the accused is not kept in custody for an indefinite period because the trial of the case has already commenced and statements of two witnesses have been recorded, and a good number of documents have also come on record so far.” 21. The accused person in the case of Arif Sharif v. Chairman, NAB (2004 SCMR 1805) was under arrest for over two years and initially no Reference had been filed against him for a long time and when a Reference was actually filed no progress whatsoever had been made towards conclusion of the trial and, thus, in those peculiar circumstances he was admitted to bail by this Court. 22. The accused person in the case of Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others (2015 SCMR 1092) had spent about six years in jail, his trial was nowhere close to its conclusion and the accused person was not primarily responsible for such delay. After taking notice of the provisions of section 16(a) of the National Accountability Ordinance, 1999 this Court had found the delay in conclusion of the trial to be “inordinate” and “shocking” and had, thus, admitted the accused person to bail. It was observed by this Court that “An accused person cannot be left at the mercy of the prosecution to rot in jail for an indefinite period. The inordinate delay in the conclusion of trial of detained prisoners cannot be lightly ignored provided it was not caused due to any act or omission of accused.” It was added that “despite of exclusion clause beneficial provision Civil Petition No. 632 of 2018 18 of section 497, Cr.P.C. can be pressed into service in some genuine and rare cases to provide relief of grant of bail to a highly deserving accused, incarcerated in prison for a longer duration.” This Court had gone on to observe that “There is also a long chain of authorities and dicta of this Court where bail has been granted on account of shocking delay in the conclusion of trial in cases falling under the NAB laws.” 23. The survey of the precedent cases detailed above and a careful reading of the judgments rendered or orders passed in those cases leads us to conclude as follows: (a) Section 16(a) of the National Accountability Ordinance, 1999 speaks of prosecution of an accused person in an Accountability Court and hearing of the case by such Court on day to day basis so as to be disposed of within thirty days and it does not speak of the period of custody of the accused person before or during the trial. (b) Section 16(a) of the National Accountability Ordinance, 1999 does not contemplate or provide for bail for an accused person if the timeframe for the trial mentioned therein is overstepped. In fact section 9(b) of the said Ordinance expressly ousts the jurisdiction of an Accountability Court in the matter of grant of bail to an accused person on any ground whatsoever. (c) The word “shall” used in section 16(a) of the National Accountability Ordinance, 1999 has been used in the context of conclusion of a trial by an Accountability Court and it is directory in nature and not mandatory because it does not provide for a penalty or a consequence in case of its non- observance or non-compliance. It does not provide that if the stipulated timeframe is not adhered to by an Accountability Court in the matter of conclusion of a trial then the prosecution of the accused person would stand terminated Civil Petition No. 632 of 2018 19 and he would be deemed to have been acquitted or that the accused person would be entitled to be admitted to bail on such ground. (d) In an appropriate case through exercise of its jurisdiction under Article 199 of the Constitution a High Court may grant bail to an accused person arrested in connection with an offence under the National Accountability Ordinance, 1999 and section 9(b) of the said Ordinance does not affect the jurisdiction of a High Court conferred upon it by the Constitution. The constitutional jurisdiction of a High Court is, however, an extraordinary jurisdiction meant to be exercised in extraordinary circumstances and not in run of the mill cases or as a matter of course. (e) There is hardly any precedent available where a High Court or this Court had admitted an accused person to bail exclusively on the ground that he had remained in custody for over thirty days or his trial had not concluded within thirty days in terms of section 16(a) of the National Accountability Ordinance, 1999, except a couple of cases wherein the factual background and the ratio decidendi of the case of Aga Jehanzeb (supra) had not been correctly appreciated on account of lack of proper assistance. (f) Ordinarily bail is allowed to an accused person on the ground of delay only where the delay in the trial or the period of custody of the accused person is shocking, unconscionable or inordinate and not otherwise. The primary consideration for grant of bail on the ground of such delay is undue hardship and more often than not prima facie merits of the case against the accused person are also looked into before admitting him to bail on the ground of delay. (g) Before admitting an accused person to bail on the ground of hardship caused by a shocking, unconscionable or Civil Petition No. 632 of 2018 20 inordinate delay a High Court or this Court also looks for the reasons for the delay and if some significant or noticeable part of the delay is found to be attributable to the accused person then the relief of bail is withheld from him. (h) Even in cases of delay ordinarily bail is not granted straightaway and a direction is issued to the trial court in the first instance to conclude the trial within a period fixed for the purpose by the Court itself (as opposed to the time fixed by section 16(a) of the National Accountability Ordinance, 1999 which has already expired). In a case where the Court fixes a time for conclusion of the trial sometimes the Court also observes that in case of non-compliance of the Court’s direction the accused person would automatically stand admitted to bail and on other occasions the Court observes that in case of non-compliance of the Court’s direction the accused person may approach the High Court again for his bail. (i) Even in cases where a direction is issued by the High Court or this Court regarding conclusion of a trial within a specified period fixed by the Court for the purpose admission of the accused person to bail upon non-compliance of such direction is not always automatic, be it a case under the National Accountability Ordinance, 1999 or under any other law. In the cases of Ashok v. The State (1997 SCMR 436), Jadeed Gul v. The State (1998 SCMR 1124), Muhammad Aslam v. The State (1999 SCMR 2147) and Aga Jehanzeb v. N.A.B. and others (2005 SCMR 1666) the accused person was admitted to bail or was deemed to have been admitted to bail in such an eventuality but in the case of Nisar Ahmed v. The State and others (PLD 2016 SC 11) this Court had refused to admit the accused person to bail even on such a ground. It goes without saying that a direction issued by a superior Court to the trial court to conclude a trial within a specified period is an administrative direction and non- Civil Petition No. 632 of 2018 21 compliance of such a direction by the trial court for whatever reason may not entitle the accused person to claim bail as of right. 24. We now proceed to decide the present petition in the light of the principles and practices deduced from the precedent cases detailed above. As already observed in the opening part of this judgment, the learned counsel for the petitioner has not seriously pressed this petition on the merits of the petitioner’s case and the High Court had felt satisfied that reasonable grounds did exist for believing in the petitioner’s involvement in the alleged offence. The stands taken by the petitioner before this Court regarding the properties in issue are ostensibly mutually contradictory. The medical ground for bail urged through the present petition appears to be a fresh ground on which the petitioner may approach the High Court in the first instance. The case against the petitioner is quite distinguishable from the case against his co-accused who had been admitted to bail by the High Court inasmuch as the petitioner is the principal accused in this case whereas the said co- accused are alleged to be Benamidars only. As regards the delay in the petitioner’s trial the order-sheet of the trial court has neither been appended with this petition nor the same has been produced before us to show as to why delay has occurred in conclusion of the petitioner’s trial and who is responsible for the delay. According to the learned Additional Prosecutor-General Accountability appearing for the respondents statements of quite a few prosecution witnesses have already been recorded by the trial court by now, many of the prosecution witnesses cited in the Calendar of Witnesses shall be given up by the prosecution and the remaining evidence of the prosecution shall be produced before the trial court within the next few months. The High Court has already issued a direction to the trial court to conclude the petitioner’s trial within the shortest possible time. For all these reasons no occasion has been found by us for interference in the matter at such a stage. This petition is, therefore, dismissed. Civil Petition No. 632 of 2018 22 25. Before parting with this judgment we would like to observe that the original intent behind introduction of section 9(b) of the National Accountability Ordinance, 1999 ousting jurisdiction of the courts regarding grant of bail in a case under the said Ordinance already stands neutralized by opening of the door for bail through exercise of constitutional jurisdiction of a High Court and resultantly the entire burden in that regard is being shouldered by the High Courts which is a huge and an unnecessary drain on their precious time. Apart from that the High Courts and this Court have always felt difficulty in adjusting the requirements of “without lawful authority” and “of no legal effect” relevant to a writ of certiorari (Article 199(1)(a)(ii) of the Constitution) with the requirements of bail provided in section 497, Cr.P.C. In the changed scenario the legislature may, if so advised, consider amending the National Accountability Ordinance, 1999 appropriately so as to enable an accused person to apply for his bail before the relevant Accountability Court in the first instance. It is also recommended that the unrealistic timeframe for conclusion of a trial specified in section 16(a) of the National Accountability Ordinance, 1999 may also be reconsidered and revisited by the legislature. Chief Justice Judge Judge Judge Judge Islamabad 01.10.2018 Approved for reporting. Arif

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE GULZAR AHMED MR. JUSTICE SH. AZMAT SAEED CIVIL PETITION NO.636 OF 2013 (On appeal from the order dated 23.4.2013 of the Lahore High Court, Lahore passed in WP No.9349 of 2013) Miss Kalsum Khaliq Advocate, Islamabad … Petitioner VERSUS 1. The Election Commission of Pakistan etc. 2. Malik Shabbir Hussain Awan, RO 3. Imtiaz Ahmad, Iftikhar Ahmad, Muhammad Hashim Sahou, Ghulam Farid Mairani, 4. Ghulam Haider Thind and others … Respondent (s) Petitioner: In person For Ghulam Haider Thind, respondent No.34 Mr. Ahsan Bhoon, ASC Ch. Akhtar Ali, AOR On Court notice: Malik Muhammad Tariq, DG, Social Security, Mr. Aleem Perviaz, Dir (Legal) Mr. M. Anwar Dy. Dir. Mr. Mumtaz Niazi, SSO, Layyah Date of hearing: 09.5.2013. ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ.- This petition for leave to appeal has been filed against the judgment dated CP No.636-2013 - 2 - 23.4.2013 passed by the learned Lahore High Court, Lahore in Writ Petition No.9349 of 2013. 2. Precisely stating, facts of the case are that respondent No.34 Ghulam Haider Thind s/o Malik Ghulam Rasool [hereinafter referred to as “the respondent”] submitted nomination papers as a candidate for Constituency PP-266 Layyah. An objection was raised against his candidature on the ground of non-payment of social security dues of Rs.256500/- in respect of a flour mill (M/s Ahmad Khan Flour Mills, Layyah) owned by him for the months of March, May & June, 2009 and April 2010 to March 2013. His nomination papers were rejected on 06.04.2013 for this and other reasons. 3. It may not be out of context to note that in pursuance of the letter dated 4.4.2013 by the Director, Punjab Employees Social Security, Institution an amount of Rs.1,40,300/- was deposited on 5.4.2013. The detail of which is given below:- S.No. Period Booked Amount Increase Total 1. March, 2009, May & June, 2009 March, 2010 to June, 2012 58,140 29070 87210 2. January & February, 2010 - 594 594 3. July, 2012 to February, 2013 34907 12,189 47,096 4. March, ,2013 5400 - 5400 Total 98,447 41853 140,300 CP No.636-2013 - 3 - It is explained that out of the total alleged amount, the respondent had been depositing the amount from time to time, therefore, after deducting the same, the balance was deposited on 5.4.2013 for the periods which have been mentioned hereinabove. 4. As a consequence of the rejection of the Nomination Papers, an appeal was preferred by the respondent being Election Appeal No.09/2013, which has also been dismissed vide order dated 10.4.2013. Relevant para therefrom reads thus: - “3. Although the appellant has made payment towards Social Security Fund yet on account of the allegations discussed in he first part of the order, the appellant’s candidature was to be dealt with consciously and by not allowing him to enter into the election process as qualified candidate. The learned Returning Officer, in our considered view, has reached a right decision. The result of the above discussion is that the findings arrived at by the learned Returning Officer are upheld and this appeal preferred against rejection of the appellant’s nomination papers stands dismissed.” 5. Against the above order, a Writ Petition No.9349/2013 was preferred by the respondent, which has been allowed vide impugned order dated 23.4.2013, wherein regarding the outstanding amount of contribution of Social Security it has been dealt with as under:- “5. In our view the impugned order dated 10.4.2013 passed by the learned Election Tribunal is not sustainable for the following reasons:- (i) …………………………………... CP No.636-2013 - 4 - ………………………………….. (ii) As far as the question of default is concerned, there is nothing on record to show that the petitioner has controlling interest or majority shareholding in Ahmad Flour Mills, Layyah. The fact that petitioner paid the liability of the company does not by itself indicate that the petitioner was liable to pay the said account. The explanation offered by the learned counsel for the petitioner that he paid the said amount as a matter of abundant caution in order to avoid of possibility of being termed as a defaulter, seems plausible. Even otherwise, there is nothing on record that may indicate that the petitioner is in default of social security contributions in his personal capacity or on the basis of the liability of any company in which he holds the controlling interest.” 6. The petitioner, who is an objector being a voter, has instituted instant petition for leave to appeal, inter alia, on the ground that the case of the respondent falls within the mischief of Article 63(1)(o) of the Constitution of Islamic Republic of Pakistan, 1973 and on account of his default in making the payment of the Government dues, he was disqualified to contest the election. According to her, the learned High Court had not taken into consideration, the judgment of the learned Returning Officer as well as the Appellate Forums. Because there was no question at all regarding holding the controlling shares or not, as admittedly, the amount outstanding towards the Social Security Institution was CP No.636-2013 - 5 - deposited by the respondent on 5.4.2013, as per the challan, which has been produced before the Court. 7. The learned counsel appearing for the respondent seriously controverted to the arguments, raised by her as according to him in the Nomination Papers nothing was concealed and as the petitioner, while disclosing the factum of the outstanding dues had stated that to the extent of the shares of 9/16th in M/s Ahmed Khan Flour Mills, his lady wife Saeeda Begum is the owner and so far the shares in her favour had not been transferred, as litigation is pending in the Civil Court as well as in the High Court, therefore, on account of this reason, that any amount, which was due, was not deposited hence the statement so made by the respondent is without concealing anything and therefore, following the law laid down by this Court in the case of Munir Ahmed and another v. District Returning Officer/Appellate Authority, Sargodha and others (2004 SCMR 1456), the amount was deposited under the compelling circumstances, as such, the respondent cannot be declared defaulter in the payment of Government Dues in terms of the Article 63(1)(o) of the Constitution. He has also stated that in order to examine an identical question, a larger Bench of this Court has granted leave to appeal in Civil Petition No.626/2013 titled as “Jamil Hassan Khan v. Returning Officer, PP_174 Nankana Sahib and others” 8. We have heard the petitioner and the learned counsel for the respondent, Malik Muhammad Tariq, D.G., Punjab Employees’ CP No.636-2013 - 6 - Social Security Institution and Mr. Mumtaz Niazi, SSO, Layyah & D.G Khan and have perused the record. 9. It may not be out of place to note that the Flour Mills in respect whereof it is alleged that the respondent being its owner, was originally registered by the Social Security Organization as Ahmed Khan Flour Mills, Layyah owned by Ch. Akram Khan and had been depositing the Social Security Dues and according to DG, Punjab Employees’ Social Security Institution an amount of Rs.1,40,000/- was found due against the respondent commencing from the month of March, 2009 to onward and no sooner the Department learnt that the respondent is contesting the election, it wrote a letter to the Retuning Officer pointing out the default, which had been committed by him and subsequent thereto on 5.4.2013 the amount referred to hereinabove has been deposited through different challans, the breakup, which has been given hereinabove. Prima facie, it seems that there is a default of the Government Dues for a period of more than six months form the time when the Nomination Papers were filed. Therefore, under the circumstances, the Returning Officer as well as the appellate Court vide orders dated 06.04.2013 and 10.4.2013 respectively came to the conclusion that the respondent was disqualified from contesting the election. 10. Leave to appeal is granted, inter alia, to examine as to whether respondent Ghulam Haider Thind is not disqualified under Article 63(1)(n) of the Constitution from contesting election from CP No.636-2013 - 7 - PP-266 Layyah, as admittedly he had paid government dues of Rs.140300/- on 05.04.2013 towards Social Security for over six months at the time of filing of his nomination papers. And in the meanwhile respondent Ghulam Haider Thind is restrained from contesting election for Constituency PP-266 polling of which is scheduled to be held on 11.05.2013. 11. Notices to all the respondents be issued for a date in office. Chief Justice Judge Islamabad, the Judge 9th May, 2013 *M Safdar Mahmood/* Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Sajjad Ali Shah Mr. Justice Yahya Afridi Civil Petition No. 639 of 2019 (Against the order dated 25.02.2019 passed by the Islamabad High Court, Islamabad in Writ Petition No. 352 of 2019) Mian Muhammad Nawaz Sharif …Petitioner versus The State, etc …Respondents For the petitioner: Khawaja Haris Ahmad, Sr. ASC Mr. Muhammad Zubair Khalid, ASC Mr. Sher Afgan Asadi, ASC For the State: Mr. Nayyar Rizvi, Additional Prosecutor-General, Accountability Mr. Jehanzeb Barwana, Special Prosecutor, Accountability Mr. Naeem Tariq Sanghera, Special Prosecutor, Accountability Mr. Arshad Qayyum, Special Prosecutor, Accountability Dr. Qadeer Alam, AIG (Legal) (Prison) Asim Javed, D.S. Home Department Date of hearing: 26.03.2019 ORDER Asif Saeed Khan Khosa, CJ.: Civil Miscellaneous Application No. 2667 of 2019 This miscellaneous application is allowed and the document appended therewith is permitted to be brought on the record of the main petition. Disposed of. Civil Petition No. 639 of 2019 2 Civil Miscellaneous Application No. 2265 of 2019 2. This miscellaneous application is allowed and the concise statement of respondent No. 2 appended therewith is allowed to be brought on the record of the main petition. Disposed of. Civil Petition No. 639 of 2019 3. Through this petition Mian Muhammad Nawaz Sharif petitioner has sought leave to appeal against the order dated 25.02.2019 passed by a learned Division Bench of the Islamabad High Court, Islamabad in Writ Petition No. 352 of 2019 whereby a prayer made by him regarding suspension of sentence and release on bail in a pending criminal appeal against his conviction and sentence was dismissed. 4. The petitioner had been convicted by the Accountability Court-II, Islamabad in Reference No. 19 of 2017 in respect of an offence under section 9(a)(v) read with section 14(c) of the National Accountability Ordinance, 1999 and was sentenced to rigorous imprisonment for seven years and to pay fine apart from some other sentences. The petitioner challenged his conviction and sentence before the Islamabad High Court, Islamabad through an appeal and during the pendency of that appeal he filed Writ Petition No. 352 of 2019 seeking suspension of his sentence and release on bail during the pendency of the appeal but on 25.02.2019 the said Writ Petition was dismissed by a learned Division Bench of the Islamabad High Court, Islamabad. Hence, the present petition before this Court. 5. We have heard the learned counsel for the parties at some length and have gone through the relevant record appended with this petition. 6. After addressing elaborate arguments in support of the petitioner’s prayer for bail upon suspension of his sentence the learned counsel for the petitioner has prayed that the petitioner Civil Petition No. 639 of 2019 3 may be enlarged on bail upon suspension of his sentence for a period up to eight weeks so as to provide him an opportunity of proper medical treatment of his choice and upon expiry of the requisite period the petitioner shall voluntarily surrender to custody regarding which the learned counsel for the petitioner has undertaken on behalf of the petitioner. The learned Additional Prosecutor-General, Accountability appearing for the National Accountability Bureau has, however, opposed the said prayer maintaining that the petitioner is a convicted prisoner who is already being offered as well as afforded the best medical treatment and facilities available in the country. 7. The medical reports of the petitioner brought on the record of the case do suggest that he has a long history of various ailments including cardiac complications, kidney problem, hypertension and diabetes. Some of the reports prepared by the Medical Boards and available on the record clearly recommend that “the patient’s current symptoms necessitate coronary angiography, after nephrologist clearance” and that “the patient needs cardiac catheterization, for further management, in view of his symptoms of angina. Because of long standing history of comorbidities and complicated cardiac surgical history, a nephrologist and cardiac surgical backup is recommended during the cath.” It has clearly been mentioned in such reports that while undergoing angiography the petitioner “will be at a mild moderate risk of contrast including nephropathy”. In this peculiar backdrop, and extending due deference to the consistent medical opinion of senior doctors available on the record, the prayer made by the learned counsel for the petitioner regarding admission of the petitioner to bail upon suspension of his sentence for a limited period has been found by us to be reasonable. This petition is, therefore, converted into an appeal and the same is allowed and consequently the petitioner is admitted to bail upon suspension of his sentence subject to furnishing bail bond in the sum of Rs. 5,000,000/- (Rupees five million only) with two sureties each in the like amount to the satisfaction of the Additional Registrar (Judicial) of this Court in the following terms: Civil Petition No. 639 of 2019 4 i) The sentence of the petitioner handed down by the Accountability Court-II, Islamabad in Reference No. 19 of 2017 in respect of an offence under section 9(a)(v) read with section 14(c) of the National Accountability Ordinance, 1999 is suspended and he is admitted to bail for a period of six weeks from the date of his release as a consequence of this order. It is made clear that during this period the petitioner shall not leave or be allowed to leave the country. ii) Bail granted to the petitioner through the present order shall automatically stand canceled upon expiry of six weeks from the date of his release whereupon the petitioner shall surrender to custody voluntarily failing which he shall be retaken into custody. Surrender to custody by the petitioner shall not include surrendering before a court with an application for bail. iii) During the above mentioned period of six weeks the petitioner may get himself medically treated from medical practitioners and medical facilities of his choice in Pakistan. iv) If during that period of six weeks the appeal filed by the petitioner before the Islamabad High Court, Islamabad is finally decided by the said Court then upon such decision custody of the petitioner shall thereafter be regulated by an order of the High Court to be passed in that regard, if need be. Chief Justice Judge Judge Islamabad 26.03.2019 Not approved for reporting. Arif

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Dost Muhammad Khan Mr. Justice Sardar Tariq Masood Mr. Justice Mazhar Alam Khan Miankhel CRIMINAL PETITION NO.662 OF 2017 (On appeal against the judgment dated 22.5.2017 passed by the Lahore High Court, Multan Bench, Multan in Crl.Misc. No.2593-B/2017) Muhammad Tanveer Petitioner Versus The State and another Respondents For the Petitioner : Mr. Ijaz Ahmad Toor, ASC Syed Rifaqat Hussain Shah, AOR For the State : Ch. Muhammad Sarwar Sidhu, APG Pb. Muhammad Ijaz, ASI Date of Hearing : 22-08-2017 JUDGMENT Dost Muhammad Khan, J.— The petitioner was booked in Crime No.902 dated 19.10.2016, registered at Police Station Mumtazabad, Multan u/Ss. 381-A/411 PPC. He was refused grant of bail by the Courts below therefore, he seeks leave to appeal against the order of the Lahore High Court, Multan Bench, Multan dated 22.5.2017. 2. The allegations against the petitioner are that, Usman Waseem the complainant parked his CD-70 Honda Motorbike bearing Registration No.MNP-7713 near Doctor Zaheer’s clinic and when he returned after getting medicines from the clinic, he found the motorbike missing then, he got registered the case against unknown accused. Crl.P. 662 of 2017 2 3. At a subsequent stage, allegedly, the said motorbike was recovered from the house of the petitioner thus, he was implicated in the case. 4. None has witnessed the lifting of the motorbike and no evidence to that effect is available on record, therefore, the insertion of section 381-A PPC appears not only unjustified but also speaks about mala fide of the police. Whether in the peculiar circumstances of the case, the petitioner is liable to be prosecuted u/s 381-A PPC or 411 PPC, is a debatable question to which the Trial Court shall give due consideration, being a borderline case and when none of the two offences are punishable with imprisonment falling within the prohibitory limb of section of 497 Cr.P.C then, refusing to grant bail to the petitioner would be highly unjustified. 5. The High Court and the Trial Court refused to grant bail to the petitioner on the ground that he was involved in some other cases of the same nature, without taking care that what was the final result of those, because today we are provided additional documents where in all those cases the petitioner has been granted bail. 6. We are shocked and disturbed to observe that in cases of this nature, not falling within the prohibition contained in section 497 Cr.P.C, invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like Crl.P. 662 of 2017 3 petitions. This phenomenon is growing tremendously, thus, cannot be lightly ignored as precious time of the Court is wasted in disposal of such petitions. This Court is purely a constitutional Court to deal with intricate questions of law and Constitution and to lay down guiding principle for the Courts of the country where law points require interpretation. 7. The Supreme Court regulating the grant or refusal of bail has since long laid down binding and guiding principles however, the principle in two cases, out of many are directly attracted to the present case, are mentioned herein once again. In the case of Mansha Khan v. The State (1977 SCMR 449) it was held as follows:- “— S.497 Crl.P.C. read with section 325/34 PPC— Grievous hurt – Bail – Offence u/s 325 PPC (repealed) being punishable with 7 years R.I. is not one of such offences where bail is to be refused by reason of prohibition contained in section 497 Cr.P.C.— held, bail in such cases, hence, not to be refused merely because of offence being non-bailable— Any strong reason being absent to refuse bail, Courts below, held, not properly exercised their discretion in refusing bail on basis of number of injuries suffered by victim of attack.” 8. In the case of Tariq Bashir V. The State (PLD 1995 SC 34) this Court has taken notice of stock of prevailing circumstances where under-trial prisoners are sent to judicial lock-up without releasing them on bail in non-bailable offences punishable with imprisonment of less than 10 years. It was held that “bail in such offences shall not be refused.” This Court took further pains by reproducing the entire provision of section 497 Cr.P.C. and further held that “grant of bail in such offences is a rule and refusal shall be an exception, for which cogent and Crl.P. 662 of 2017 4 convincing reasons should be recorded.” While elaborating exceptions, albeit it was mentioned by this Court that if there is a danger of the offence being repeated if the accused is released on bail, then grant of bail may be refused like the two Courts below in this case have held but it was further elaborated that such opinion of the Court shall not be founded on mere apprehension and self assumed factors but the same must be supported by cogent reasons and material available on record and not to be based on surmises and artificial or weak premise. 9. Even otherwise to ensure that the accused may not repeat the same offence, if released on bail, sufficient surety bonds shall be obtained through reliable sureties besides the legal position that repetition of the same offence would disentitle the accused to stay at large as bail granting order may be recalled in that event, therefore, such a ground should not be an absolute bar in the way of grant of bail. 10. There is a sky high difference between jail life and free life. If the accused person is ultimately acquitted in such cases then, no kind of compensation would be sufficient enough to repair the wrong caused to him due to his incarceration. 11. It is settled principle of law that once the Legislature has conferred discretion on the Court to exercise jurisdiction in particular category of offences without placing any prohibition on such discretion then, the Court shall not import to the provision of law, reasons or factors alien thereto and not specifically mentioned in the Statute. 12. Today every prison is accommodating convicted and under-trial prisoners more than double of its capacity and allied Crl.P. 662 of 2017 5 facilities besides the State authorities are involved on daily basis in transporting such under-trial prisoners from the prisons to the Court premises on every date of hearing, involving risk and extra expenditures from the public exchequer while on the other hand the dependent family members, especially the school going children of the under-trial prisoners charged for such offences are left without proper care and supervision of the father or mother when their parents are sent to jail, therefore, their academic career is always at stake and they are tempted and persuaded to indulge in unsocial or anti-social activities ultimately landing them in the field of crimes, which is not good for the society at large. 13. Once this Court has held in categorical terms that grant of bail in offences not falling within the prohibitory limb of section 497 Cr.P.C. shall be a rule and refusal shall be an exception then, the Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding on all Courts throughout the country including the Special Tribunals and Special Courts. 14. Although in some special laws there are specific provisions, limiting the scope of section 497 Cr.P.C. however, this Court in many reported cases has laid down binding principles that the provisions of section 497 Cr.P.C. shall not be ignored even in those cases and the guiding provisions/principles given therein shall always be kept in mind while considering the grant or refusal of bail. In this regard the case of The State v. Syed Qaim Ali Shah (1992 SCMR 2192) and the famous case of Khan Asfandyar Crl.P. 662 of 2017 6 Wali and others v. Federation of Pakistan (PLD 2001 SC 607) are much relevant, where principle of section 497 Cr.P.C. was held to be applicable even to such cases of-course subject to slight limitation. 15. We expect the Courts below to adhere to these binding principles in future and not to act mechanically in the matter of granting or refusal of bail because liberty of citizen is involved in such matters, therefore, same should not be decided in vacuum and without proper judicial approach. 16. Accordingly, this petition is converted into appeal and the same is allowed. The petitioner is granted bail in the sum of twenty thousands rupees (Rs.20,000/-) with one surety to the satisfaction of the Trial Court or Duty Magistrate. In case the bailbonds are attested by the Duty Magistrate then, it shall be forwarded to the Trial Court to be placed on the judicial file for future course of action. Judge Judge Judge Islamabad, the 22nd August, 2017 Saeed /- “Approved for reporting’

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE FAISAL ARAB MR. JUSTICE SAJJAD ALI SHAH CIVIL PETITION NO. 664-K OF 2017 (On appeal against the judgment dated 15.11.2017 passed by the High Court of Sindh, Karachi in C.P. No. D-4177/2016) Parveen Shoukat … Petitioner VERSUS Province of Sindh and others … Respondents For the Petitioner: Mr. Rafiq Ahmed Kalwar, ASC For the Respondents: Mr. Sibtain Ahmed, AAG Amicus curiae: Mr. Shahid Anwar Bajwa, ASC Date of Hearing: 31.08.2018 JUDGMENT FAISAL ARAB, J.- The husband of the petitioner, who was working as a Deputy Secretary in BPS-18 with the Government of Sindh, was kidnapped on 09.05.1999. The incident was reported to the police but he could not be recovered. The family gave up on him on the assumption that the kidnapers might have killed him. In 2009, the petitioner filed a suit seeking declaration of her husband’s death in terms of Article 124 of Qanoon-e-Shahadat Order, 1984, which was granted on 19.03.2010. The petitioner then applied to the department for family pension, which was granted in terms of Sindh Government’s notification dated 26.07.2006, which allowed family pension from the date when the petitioner’s husband went missing. The petitioner, however, took the stand that she is entitled for family CIVIL PETITION NO. 664-K OF 2017 2 pension at the rate that was applicable on the expiry of the seven years from the date of kidnapping and not that was applicable on the date of kidnapping. When her claim was denied, she filed a constitution petition before the High Court, which was dismissed vide impugned judgment. Hence, this petition. 2. Mr. Shahid Anwar Bajwa, who was appointed as amicus curiae referred to the judgments reported in the cases of Ganesh Bux Singh Vs. Mohammad (AIR (31) 1944 Oudh 266), H.J. Bhagat Vs. Life Insurance Corporation of India (AIR 1965 Madras 440), Muhammad Sarwar Vs. Fazal Ahmad (PLD 1987 SC 1) and N. Jayalakshmi Ammal Vs. R. Gopala Pathar (AIR 1995 SC 995). He submitted that in these cases it was held that scope of Section 108 of the repealed Evidence Act (equivalent to Article 124 of Qanoon-e-Shahadat Order, 1984) is only to the extent that it presumes a missing person dead and in no way helps to draw an inference as to the probable time of death of a missing person within those seven years, therefore, the probable time of death has to be inferred independent of the provision of Article 124 on the basis of material and circumstances that come on the record. He summed up by stating that under Article 124 only death of the missing person can be presumed after seven year statutory period has elapsed but this Article does not help in visualizing his probable time of death within those seven years, which in terms of Muhammad Sarwar’s case purely depends on the facts and circumstances of each case. 3. Learned counsel for the petitioner, on the other hand, argued that under Article 124 of the Qanoon-e-Shahadat Order, CIVIL PETITION NO. 664-K OF 2017 3 1984 death of a missing person is to be presumed on the date when the seven years period expired. He submitted that the petitioner will suffer financially if the family pension is given at the rate which was payable on the first day of her husband’s kidnapping. He further submitted that learned High Court wrongly went with the decision of the Government of Sindh and erred in considering the first day on which petitioner’s husband went missing as the date on which he would be presumed to have died and not on the date when seven years period expired. Lastly, he submitted that the petitioner being a widow is entitled to pensionary benefits as are calculable when the seven years of her husband’s kidnapping elapsed i.e. on 09.05.2006. 4. Learned Assistant Advocate General, on the other hand, defended the impugned judgment, which was rendered by placing reliance on the Government of Sindh’s letter dated 16.01.1994 issued by Finance Department. This letter only provides that if an employee is missing or remains untraced for a period of seven years as envisaged under Article 124, family pension as admissible under the rules may be allowed to his legal heirs. At best this letter only acknowledges the presumption of death that arises when a missing person is not heard of for seven long years. Obviously through such a letter, probable time of death within those seven years period cannot be visualized which purely depends on the facts and circumstances of each case. The question that arises is whether Article 124 of Qanoon-e-Shahadat Order, 1984 has any application with regard to visualizing the probable time of death of a missing person, is the question that needs to be CIVIL PETITION NO. 664-K OF 2017 4 answered. In this regard the meaning and scope of Articles 123 and 124 of Qanun-e-Shahadat Order, 1984 need to be briefly explored. For convenience sake these Articles are reproduced below:- “123. Burden of proving death of person known to have been alive within thirty years: Subject to Article 124, when the question is whether a man is alive or dead and it is shown that he was alive within thirty years, the burden of proving that he is dead is one the person who affirms it. 124. Burden of proving that person is alive who has not been heard of for seven years. When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.” 5. In terms of Article 123 of the Qanoon-e-Shahadat Order, 1984 when a question arises as to whether a person is dead or alive and it is shown that he was alive within last thirty years, the burden to prove that he is no more alive is on the person who claims that he is dead. So in terms of Article 123 it is to be proved for a fact before a court of law that a person who was alive in the last thirty years has actually died on the basis of positive evidence. This rule of evidence has an exception which is contained in Article 124 of the Qanoon-e-Shahadat Order, 1984. It is attracted where a person has disappeared and is not heard for a period of seven long years by any of those who would have naturally heard of him had he been alive. In such eventuality, Article 124 raises a CIVIL PETITION NO. 664-K OF 2017 5 presumption that a person has disappeared without a trace for seven years may no more be alive. So without the proof of actual death as envisaged under Article 123, a missing person in terms of the legal fiction contained in Article 124 is to be presumed dead, if he is not heard for seven years by those who would have definitely heard of him had he been alive. What Article 124 at best does is that it prevents the court from entertaining a case for making a declaration of death of a missing person until the statutory seven year period prescribed therein expires. To prescribe a waiting period is of utmost importance as presuming a missing person to be legally dead without waiting for a sufficient period of time has its own adverse consequences on his rights e.g. his estate would be distributed among his heirs or in favour of those who are beneficiary of his Will. The missing person’s right of inheritance from a relation dying after he went missing would also be effected in case he resurfaces in two or three years. If no reasonable period is prescribed by law and within a year or two of his disappearance he resurfaces, by then his property would have already gone in the hands of his presumptive heirs or beneficiaries of his Will who may have already dealt with it in a manner that has left very little or nothing to be restored back to the returned person. By prescribing a minimum period of seven years what the law only suggests is that before presuming a missing person to be legally dead, persons interested in seeking such a declaration should wait for seven years as it is quite possible that within such period he might resurface or his whereabouts may become known, in case he is still alive. So this seven year period is nothing but a safety precaution provided by law which requires the concerned parties to CIVIL PETITION NO. 664-K OF 2017 6 wait for a certain period of time and only upon expiry of such period seek declaration from the Court that the missing person may no more be alive. 6. Section 108 of repealed Evidence Act is equivalent to Article 124 of the Qanun-e-Shahadat Order, 1984. Similar question came up in the case of Ram Singh Vs. Board of Revenue, U.P. Allahabad (AIR 1964 Allahabad 310) and it was held as under:- “5. But Sec. 108 Indian Evidence Act is not exhaustive on the question of presumptions as regards death of a person. The Court may make a suitable presumption in accordance with the circumstances of each case. Suppose, a man sails in ship; and the ship sinks. Thereafter the man is never seen alive. Under such circumstances, it is reasonable to assume that the person died in the shipwreck. When a person goes for pilgrimage, he or she ordinarily returns home in six months or in a year. In the present case Smt. Rukmini left for Gangasagar Yatra 17 years ago. Since then she has not been heard of. It is reasonable to assume that, she died in some accident or of some disease during the journey or at Gangasagar. She appears to have left about the year 1940. We may reasonably assume that, she probably died by 1941 or 1942 in connection with her pilgrimage. There is evidence to the effect that, Deo Singh died about 1945. If the plaintiffs established circumstances indicating Smt. Rukmini's death by 1942, and further proved that Deo Singh died in 1945, they have proved their case. The Revenue Courts were justified in holding that, Smt. Rukmini died during Deo Singh's life-time.” CIVIL PETITION NO. 664-K OF 2017 7 7. In the case of Smt. Bhanumati Dayaram Mhatre Vs. Life Insurance Corporation of India (AIR 2008 Bombay 196), the same question was addressed as follows:- “5. Section 3 of the Evidence Act prescribes the standard of proof by defining the word "proved" as follows: “Proved - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” If the test of preponderance of probability laid down by Section 3 of the Act is applied, that is to say a fact is said to be proved if the Court considers its existence to be so probable that a prudent man ought, under the circumstances of the particular case, to act upon certain supposition that it exists, then it would have to be held that Kushal has died on 13th November, 1995 or soon thereafter. If he was alive after 13th November 1995, there was no reason for him not to contact his immediate family members. It is not the case that Kushal left the house in distress or he was under some disability which prevented him from returning home or even contacting his family members. Nor is it shown that Kushal was missing in such circumstances or could be at such place wherefrom he could not even contact his parents or close family members. Considering the fact that Kushal was not under any distress or disability nor was he in the situation wherefrom he could not contact his family members coupled with the fact that he has not contacted his family members at all since 13th November, 1995 and has been declared to be dead by CIVIL PETITION NO. 664-K OF 2017 8 the declaratory decree of the competent Court makes us, as men of ordinary prudence, believe that Kushal must have died on 13th November, 1995 or soon thereafter.” 8. In the case of Muhammad Sarwar Vs. Fazal Ahmad (PLD 1987 SC 1), this Court held as under:- “It is to be observed that the words "when the question is" occurring in both sections 107 and 108 (Articles 123 and 124 of Qanoon-e-Shahadat Order, 1984) have reference only to question of the burden of proof at the trial and not at any antecedent point of time. Thus, if a person has not been heard of for seven years there is a presumption of law that he is dead but this presumption does not extend to the date of death. Indeed there is no presumption that he died at the end of the first seven years, or at any particular date. This fact has necessarily to be proved as a fact because section 108 does not direct the Court to presume that the person who has not been heard of for the last seven years had, in fact, died at the expiry of seven years. It only provides that such a person is presumed to be dead without fixing the time of death. It is for this reason that where it is necessary to establish that a person died at any particular time such a fact must be proved by positive evidence. Thus, notwithstanding the presumption of death it would be possible for the Court to give a finding that it occurred after the expiry of the period of seven years since the time when he was last heard of, if the evidence so warrants. The upshot is that section 108 of the Evidence Act merely creates a presumption that the person, who has not been heard for seven years, is dead, at the date of the suit, and does not refer in any way as to the date of his death, which has to be proved in the same way as any other relevant fact in the case.” CIVIL PETITION NO. 664-K OF 2017 9 9. By presuming a person dead in terms of Article 124 of Qanoon-e-Shahadat Order, 1984, it does not mean that this Article is of any help in determining when he actually died in those seven- year period. He is just presumed dead for all intent and purposes after a period of seven years has expired. Therefore, Article 124 by itself is of no help in visualizing the probable time of death of a missing person within those seven years. However, the Court which is seized of the matter for making a declaration in terms of Article 124 is not prevented from visualizing the probable time of death on the basis of the circumstances in which the person has disappeared. Thus inference as to the probable time of death of a person who has gone missing for more than seven years can be drawn by the Court only by considering the facts and circumstances in which the person has disappeared. So once a missing person is presumed dead after the full seven-year statutory period has expired, the circumstances surrounding the disappearance of a person would facilitate the court in determining his probable time of death within those seven years. This is also the ratio laid down by this Court in Muhammad Sarwar’s case referred by the learned amicus curiae. 10. In the present case, the petitioner has claimed that the date of her husband’s probable time of death should be reckoned from the date when the seven year period after his disappearance expired i.e. on 09.05.2006 whereas the respondent had considered this date to be 09.05.1999 i.e. the very first day when the petitioner’s husband was kidnapped. As both the stands sought to CIVIL PETITION NO. 664-K OF 2017 10 be canvassed before us are based on pure rule of thumb, it would be very unsafe to lay down a principle of law with regard to time of death in a very rigid manner. Section 2(4) of Qanoon-e-Shahadat Order, 1984 states “a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”. As the probable time of death of a missing person could be any day within the statutory seven year period, it all depends on taking into consideration the circumstances in which a person has gone missing. One can visualize various situations e.g. a solider goes missing on a war theatre. After the war has ended and he still does not return and his name is also not listed in the tally of prisoners of war provided by the enemy. In that situation, it can be inferred that he might have vanished in some explosion during the war without a trace. In this background, his probable time of death can be the date when the war had ended. A group of mountaineers go on an expedition to conquer the K-2 mountain, however, on their way back one of them gets lost. After a month of unsuccessful search and rescue operation, it could safely be presumed that he might have died as it is highly unlikely that he could have braved the harsh weather conditions more than a month or two which he must have faced on the expedition. Then there is a situation like the present one where a person is kidnapped and not heard of for seven long years. History of kidnappings shows that many a times a kidnapped person is kept in captivity for months together. Keeping this in sight, it would be very difficult to fix the very first day of CIVIL PETITION NO. 664-K OF 2017 11 disappearance as the probable time of death in captivity. Considering that the probable date of death upon expiry of the statutory seven year period would also be too long, therefore, any reasonable time would be safe to visualize. The fact that on the disappearance of the petitioner’s husband, FIR was lodged on 14.01.2000 wherein it was stated that on 09.05.1999, the husband of the petitioner informed her that he will go to Sehwan and Dadu and then he will go to Sukkur to receive his salary. It is also stated in the FIR that on the next day, the petitioner received telephone calls from unknown number and on 27.05.1999 an unknown letter was received from which it was deducted that the petitioner’s husband has been kidnapped. Thereafter, FIR was lodged on 14.01.2000. It appears that after giving up all hopes and under the apprehension that the kidnappers might have killed the petitioner’s husband, the FIR was lodged. Taking all this into consideration, the death probably may have taken place somewhere around the date of lodging of the FIR. Therefore, such date should be assumed to be the probable date of his death. 11. From the above discussion, it is evident that the probable time of death within seven year period can be independently visualized and declared by a court of law keeping in view the circumstances in which a person in a particular case went missing. Article 124 by itself is of no help in drawing the inference as to when within those seven years period the missing person might have died. We, therefore, hold that the family pension is to be calculated from the probable date of lodging of the FIR i.e. 14.01.2000. CIVIL PETITION NO. 664-K OF 2017 12 12. For what has been discussed above, this petition is converted into appeal and partly allowed. The impugned judgment is set aside. The respondents are directed to recalculate family pension by treating the probable date of death of petitioner’s husband to be 14.01.2000. The respondents are directed to complete the process of revising the pensionary benefits of the petitioner within two months from the date of this judgment. Before parting with the judgment, we appreciate the valuable assistance rendered to this Court by Mr. Shahid Anwar Bajwa, learned ASC who appeared as amicus curiae. JUDGE JUDGE JUDGE Announced on 06.09.2019 at Karachi. Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Tariq Parvez Mr. Justice Amir Hani Muslim CIVIL PETITION NO. 683 OF 2011 (On appeal from the judgment/order dated 18.05.2011 passed by Sindh High Court, Karachi in CP.D-1743 of 2009) Independent Music Group SMC (Pvt) Ltd. and another … … Petitioners. Versus Federation of Pakistan, etc. … … Respondents. For the petitioners : Mr. Mohammad Akram Sheikh, Sr. ASC. Mr. Mehmood A. Shiekh, AOR. For respondent No.2 : Mr. M. Ali Raza, ASC. Mr. Abdul Jabbar, Acting Chairman PEMRA. Respondent No.1 : Not represented. Date of hearing : 06.06.2011. JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – This petition has been filed for leave to appeal against the judgment dated 18.05.2011 passed by High Court of Sindh, Karachi. Challenge has been made to the impugned judgment only to the extent of seeking relief that the learned Division Bench of the High Court, in the facts and circumstances of the case, instead of remanding the matter to the respondent i.e. Print & CP.683 of 2011 2 Electronic Media Regulatory Authority (PEMRA) to decide the application of the petitioners for licence, should have issued a writ in the nature of mandamus, directing the PEMRA to issue the licence. 2. Briefly stated facts of the case are that as back as on 2nd July, 2007, the petitioners submitted an application to the respondent No.2 for issuance of licence to establish & operate Satellite TV broadcast channel station, under Rule 6 of the Pakistan Electronic Media Regulatory Authority (PEMRA) Ordinance, 2002 [hereinafter referred to as ‘the Ordinance, 2002’] for a period of 15 years i.e. period permissible to avail such licence. Admittedly this application remained pending and the PEMRA failed to decide the same within the period of 100 days as required under Section 22 of the Ordinance, 2002. However, after passing of a considerable period, on 08.07.2009 it refused to grant licence due to “security clearance” not given by Ministry of Interior. Contents of the letter are reproduced hereinbelow:- “2. It is informed that the Authority in its 55th meeting held on 3rd July, 2009 has refused the award of satellite TV licence to M/s Independent Music Group (SMC-PVT) due to regret of security clearance by Ministry of Interior, which is obligatory under Rule 10(iv) of PEMRA Rules for issuance of licence.” The petitioner being dissatisfied from the above order as well as the order of the Secretary Interior dated 09.06.2009, preferred a writ petition before the High Court of Sindh at Karachi on 17.08.2009, inter alia, praying therein that directions be issued to the respondents particularly the CP.683 of 2011 3 respondent No.2 i.e. the PEMRA to immediately issue the Satellite TV broadcast channel licence to the petitioners. The petition was contested by the respondents. However, the learned Division Bench of the High Court vide impugned judgment allowed the same but the case was remanded to the PEMRA as it has been noted hereinabove. Relevant paras are reproduced hereinbelow for convenience:- “13. It was contended by the learned counsel for the petitioner that petitioner’s case is governed by PEMRA Rules of 2002 and not by PEMRA Rules of 2009. PEMRA Rules of 2009 were promulgated on December 12, 2009 and this Constitution Petition was filed on 17.8.2009, therefore, the date on which the PEMRA Rules were promulgated this Constitution Petition was already pending. It is settled law that notifications, instructions, circulars etc., issued by the government or statutory bodies operate prospectively and not retrospectively. In this regard one may refer to Hashwani Hotels Limited v. Federation of Pakistan and others, PLD 1997 SC 315, Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCMR 1652 and Dadabhoy Cement Industries Ltd. v. M/s National Development Finance Corporation, 2002 CLC 166. Even otherwise PEMRA Rules of 2009 which repealed the Rules of 2002 in Rule 20(2)(d)(v) which provide for repeal of Rules of 2002 provide that the repeal shall not: “(v) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.” Present legal proceedings were already pending when the Rules of 2009 came and therefore in any case the petitioners application could not have been dealt with under PEMRA Rules of 2009 and should have been processed under Rules of 2002. 14. Contention of the learned counsel for the petitioner was that there was no requirement of security clearance under Rule 10 of REMRA Rules of 2002, whereas the requirement of security clearance was for the first time brought about by Rule 9(5) of the CP.683 of 2011 4 Rules of 2009. Learned counsel for the PEMRA submitted that requirements of “credibility and track record” provided in Rules of 2002 themselves encompass security clearance. We do not think that we need to decide this controversy and leave if for decision in an appropriate case because what has happened in this case is that PEMRA while referring the case to Ministry of Interior pointed out that Respondent No.2 is also Director of another company which has already been granted a licence for one satellite broadcasting station. Moreover the Ministry of Interior has not given any reason whatsoever as to why security clearance was not given to the petitioner. Leaned Standing Council merely stated that she relied upon the comments submitted by the Ministry of Interior. It was available to the Ministry of Interior to bring to this Court the material that they had against the petitioners. They have chosen not to do so. This Court cannot ignore the fact that GEO SUPER has been, though through up linking licence, temporary landing rights permission telecasting sports programmes, it was stated, for five years and the sole owner of Petitioner No.1, (such sole owner is himself Petitioner No.2) has been granted TV Licenses for four other channels. No material has been placed before us to prima facie establish as to what threat if any was perceived to be likely to be caused by grant of licence to the petitioners. Therefore, based on the material produced before us, it appears to us that it was not justified for the Ministry of Interior to refuse clearance to the petitioners. Moreover every executive order must contain reasons for the order and we have not been able to divine any reason in this regard at the best none has been pleaded. 15. However, contention of learned counsel for the respondent by reference to Section 23 of the PEMRA Ordinance deserves some weight. Section 23 of the PEMRA Ordinance, provides as under: - “23. Exclusion of monopolies.-(1) No person shall be entitled to the benefit of any monopoly or exclusivity in the matter of broadcasting or the establishment and operation of broadcast media or distribution service or in the supply to or purchase from a national broadcaster of air time, programmes or advertising material and all existing agreements and contracts to the extent of conferring a monopoly or containing an exclusivity clause are, to the extent of exclusivity, hereby declared to be inoperative and of no legal effect. CP.683 of 2011 5 (2) In granting a licence, the Authority shall ensure that open and fair competition is facilitated in the operation of more than one media enterprise in any given unit of area or subject and that undue concentration of media ownership is not created in any city, town or area and the country as a whole: Provided that if a licensee owns, controls or operates more than one media enterprise, he shall not indulge in any practice which may impede fare competition and provision of level playing field.” 16. It has been stated in the Counter-Affidavit filed to the stay application as well as in the comments that four broadcasting licences have already been granted to this group. Now this is not the reason stated in the impugned order for which the application for licence has been declined. At the same time no re-joinder to the Counter-affidavit or the comments has been filed by the petitioners. This in any case is an aspect which requires evaluation by the licensing Authority and task of such evaluation cannot be undertaken by this Court in exercise of its Constitutional Jurisdiction. 17. Resultantly we set aside the impugned order dated July 8, 2009 and June, 15, 2009 and remand the matter to PEMRA to decide the application of the petitioner for licence in accordance with the law within a period of two months of the date of this judgment. Constitutional Petition alongwith the listed application is disposed of in the above terms.” 3. Instant petition has been filed for leave to appeal on behalf of the Independent Music Group SMC (Pvt.) Ltd. and others whereas the PEMRA has conceded the judgment as it has not challenged the same before this Court. 4. Learned counsel for the petitioners contended that once the High Court had concluded that refusal of grant of licence is not sustainable, it may have issued clear directions to the PEMRA for issuance of licence as CP.683 of 2011 6 it was requested for in the application dated 02.07.2007. To substantiate his plea, he has stated that under Section 22 of the Ordinance, 2002, it was incumbent upon the PEMRA to decide the application of the petitioners within a period of 100 days and as this period had already been consumed by the PEMRA because the matter was kept pending for period of about four years without any justification, no option was left with the PEMRA except to issue licence to the petitioners. 5. On the other hand, learned counsel for the respondents candidly conceded that the PEMRA has not challenged the judgment of the High Court as it has accepted whatever is stated therein but as soon as the judgment passed by the High Court of Sindh was received by the PEMRA, the process has been initiated for completing other formalities and that no sooner the same is completed the licence would be issued. 6. After hearing both the sides and having gone through the contents of the judgment of the High Court, under challenge, we are of the opinion that the learned High Court, keeping in view the fact that the petitioners have already suffered for a period of about four years, instead of remanding the case, may have issued a writ in the nature of mandamus. Be that as it may, if it has not done so, the PEMRA is under obligation, both legally and morally, to issue licence to the petitioners because the reason which prevailed upon it for refusing to issue licence to the petitioners i.e. “security clearance”, has not been accepted to by the learned High Court, therefore, the petitioners who on the basis of their application waited for a CP.683 of 2011 7 period of more than 100 days, during which his application has not been rejected, has acquired a right that they should be dealt with in accordance with law as is envisaged under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Any excuse now being made on behalf of the PEMRA is not acceptable for the reason that earlier when the rejection order was passed on 8th June, 2007, which has been reproduced hereinabove, no such demand was put forward calling upon the petitioners to fulfill the same or to remove the objection if any. If such practice is allowed to prevail then there would be no end to the litigation and if a request has been rejected/refused beyond the statutory period and the order is not sustained before the High Court then, with a view to deprive a person who is entitled to the licence and his application has been kept pending for four years, without being processed, there shall be no end to his matters and he is to enter into litigation time and again for the reasons which shall be put before him from time to time. 7. We have noted regretfully that the authorities, who are required to discharge their functions under statutory provisions, kept the matters lingering on without any legal or constitutional justification; as it happened in the instant case because it was for the PEMRA either to have rejected the application within 100 days under the law or it would have accepted the same; but now when the Court has intervened and passed the impugned order, no other excuse shall be acceptable for the purpose of causing delay in disposal of application of the petitioners. CP.683 of 2011 8 Thus for the forging reasons, the petition is converted into appeal and allowed. The PEMRA is directed to issue immediately licence to the petitioners, in terms of their application, which they have submitted on 02.07.2007 and submit compliance report of this order to the Registrar of this Court within a period of three days, which shall be placed before us in Chambers for perusal. Parties are left to bear their own costs. CJ. J. J. Islamabad, 06.06.2011. Irshad Hussain /* NOT APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Faisal Arab Mr. Justice Sajjad Ali Shah Civil Petition No. 686-K of 2019 (Against the judgment dated 5.12.2019 of the High Court of Sindh, Karachi passed in First Appeal No. 109 of 2019) Muhammad Jawed …Petitioner(s) Versus First Women Bank Ltd. and others …Respondent(s) For the Petitioner(s): Mr. Khawaja Shamsul Islam, ASC For the Respondent-2 Syed Kazim, Legal Advisor, FWB For the Respondent-4: Mr. Abrar Hassan, Sr. ASC Date of Hearing: 08.09.2020 … JUDGMENT Sajjad Ali Shah, J.- The Petitioner, through the instance petition, seeks leave of this Court to appeal against the judgment of the High Court of Sindh, Karachi whereby his appeal against the orders of the Banking Court rejecting his bid, was dismissed. Facts and Procedural History 2. Briefly, a Running Finance Facility to the extent of Rs.50 million at the request of Respondent No.3-9 was allowed to their Company- respondent No.2. The respondents after having availed the facility failed to repay the same giving rise to initiation of recovery proceedings before the Banking Court. The suit ultimately was decreed ex parte on 09.01.2018 against the said respondents excluding Respondent No.3 (“Judgment Debtors”) jointly and severally in the sum of Rs.51,760,377/- along with the cost of funds as prescribed by the State Bank of Pakistan from the date of default till realization of the entire decretal amount. 3. Upon failure of the Judgment Debtors to pay the decretal amount, Execution Proceedings were initiated wherein a writ to attach the CP 686-K of 2019 -: 2 :- mortgage property was ordered on 14.02.2018. After the attachment of the mortgaged property, notices as required under Order XXI Rule 66 of the Code of Civil Procedure 1908 (“CPC”) were issued and the attached property was ordered to be put into open auction vide order dated 26.04.2018. The Nazir of the Court then issued proclamation of sale of the said property on 31.05.2018, which was published in different national dailies on 20.06.2018, declaring that public auction for the said property will be held on 26.07.2018. However, just two days before the auction, on 24.07.2018, an application under Order XXI Rule 26 read with Rules 66, Rule 69, and Section 151 of the CPC was filed on behalf of the respondents along with Banker’s Cheque No.184623 dated 24.07.2018 in the sum of Rs.5,000,000/-, praying that the auction proceedings be suspended. The auction was nevertheless conducted on 26.07.2018 despite objection on account of pending application due to non-availability of the learned Presiding Officer. In the auction, two bidders, namely, the Petitioner and one Mr. Muhammad Shahid, offered bids of Rs.96,000,000/- and Rs.95,600,000/-, respectively. The Petitioner also deposited Rs.24,000,000/- being more than 25% of the bid amount on 09.08.2018. The record also reveals that prior to this, the Petitioner, on 06.08.2018, had filed an application for withdrawal of earnest money. However, he later deposited the balance bid amount within stipulated time despite the pendency of his application. 4. It appears that the highest bid of the Petitioner was placed before the Court for acceptance on 20.11.2018 when the Nazir filed a report stating that the Judgment Debtors had incrementally deposited a total sum of Rs.66,340,961/- in the Court, which consisted of the entire decretal amount (Rs.51,760,377/-), the cost of funds (Rs.14,547,606.50), and the cost of suit (Rs.32,977/-). In view of this development, the Court refused to accept the aforesaid bid, directed the Nazir to return the deposited bid amount of Rs.96,000,000/- to the Petitioner, and ordered the bank to CP 686-K of 2019 -: 3 :- deposit original title documents of the property in question with the Nazir of the Court for onward delivery to the respective judgment debtor. Being aggrieved, the Petitioner challenged this order before the High Court of Sindh, Karachi by way of first appeal which was dismissed vide the impugned judgment. The Petitioner now seeks leave of this Court to appeal against the said judgment. Submissions of the Parties 5. Mr. Khawaja Shams-ul-Islam, learned ASC for the petitioner contended that the facts that the Petitioner was the highest bidder in a fair and transparent auction and that he had deposited the earnest money and the balance amount within stipulated time, created a vested interest in the auctioned property and, therefore, in absence of any application under Order XXI Rule 89 or Rule 90 of CPC, the bid of the petitioner could not have been rejected. ASC further submitted that the Petitioner had a legitimate expectation that the Court will accept his bid and confirm the sale under Order XXI Rule 92 CPC, particularly because no application under Order XXI Rules 89 or Rule 90 CPC had been filed. He further submitted that the Banking Court erred in prolonging the acceptance of the bid which provided unreasonably extra time to the Judgment Debtors for depositing the decretal amount which even otherwise was of no consequence. Per counsel such subsequent deposit could not be considered after the auction proceedings were concluded. In support of his contentions, the learned counsel primarily relied upon the dictum laid down in the case of Hudaybia Textile Mills LTD v Allied Bank of Pakistan LTD (PLD 1987 SC 512) and Mst. Anwar Sultana v Bank Al-Falah LTD (2014 SCMR 1222). 6. On the other hand, Mr. Abrar Hassan, learned Sr. ASC for the Respondent No.4 argued that the basic purpose of the execution proceedings always is to ensure realization of the decretal amount which purpose has been fulfilled by depositing the decretal amount and the other CP 686-K of 2019 -: 4 :- costs well before the acceptance of petitioner’s bid. Therefore, the execution stood satisfied before creation of any rights in the mortgage property. He also submitted that even otherwise, the delay can be explained in light of the fact that the Presiding Officer was on leave during the relevant time and the same should therefore not be attributed to the conduct of Respondent No.4 in order to adversely affect his right to redeem the subject property. Furthermore, relying primarily on Muhammad Khalil v Messrs. Faisal M.B. Corporation (2019 SCMR 321), he submitted that no vested right can be created in favour of a bidder prior to confirmation of sale under Order XXI Rule 92 CPC. Based on this reasoning, he contended that since the Court neither accepted the Petitioner’s bid nor confirmed the sale as aforesaid, it cannot be said that a vested right had accrued in favour of the Petitioner. Per counsel the present petition is therefore devoid of any merits and is liable to be dismissed. Opinion of the Court 7. We have heard the learned counsels for the respective parties and have also perused the record and the case law cited at bar with their able assistance. The only question which needs to be decided in this case is as to whether after having been declared the highest bidder any vested right in the subject property was created in favour of the Petitioner extinguishing the right of redemption. Enforcement Proceedings 8. The execution proceedings are conducted under Section 51 read with Order XXI of the CPC. A brief description of various stages of these proceedings, in our opinion, is warranted before a detailed discussion of the issue. In decrees involving payment of money backed by mortgage, the judgment-debtor may satisfy his/her obligations by payment in Court or to the decree-holder in terms of Order XXI Rule 1 CPC. However, if the judgment-debtor fails to satisfy the decree in such manner, the decree- holder may inter alia apply to the Court for attachment of, the immovable CP 686-K of 2019 -: 5 :- property of the judgment-debtor under Order XXI Rule 54 CPC. After adjudicating upon any and all objections raised against such attachment under Order XXI Rule 58 CPC, the Court may order the attached property to be sold through public auction under Order XXI Rule 64 CPC. Once such an order is made, the Court causes a proclamation of intended sale, containing material details such as description of the property, its reserve price, the terms and conditions of the auction, and its time, date and venue, to be published in terms of Order XXI Rule 66 and Rule 67 CPC. This auction-sale can however be stopped or adjourned under Order XXI Rule 69 CPC if, inter alia, the requisite debt and costs are tendered to the officer conducting the sale or to the Court. Similarly, the sale can be postponed as well under Order XXI Rule 83 CPC. However, in case no such eventuality arises, the Court Auctioneer conducts the auction in accordance with the terms and conditions mentioned in the proclamation of sale. Upon completion of the auction proceedings, the Court Auctioneer declares the highest bidder to apprise him of his obligation to deposit the sale price in terms of the proclamation of sale and then sends a report to the Court describing various particulars of the proceedings including the detail of participants, the bids offered by them, the information about the highest bidder, and the notification of earnest money as deposited by the latter under Order XXI Rule 84 CPC. The Court then applies its judicial mind on the report in order to choose the most appropriate bid, preferably the highest, for the realization of the decree and attendant costs. Once a bid is accepted by the Court as adequate and thereafter the full purchase- money is deposited in terms of Order XXI Rule 85 CPC, a qualified sale of the auctioned property comes into being which can only be defeated through an application made under Order XXI Rule 89, 90, or 91 CPC. If, however, no such application is made within the time limit prescribed by law, the Court mandatorily confirms the qualified sale under Order XXI Rule 92 CPC, thereby making it absolute and transferring the title of the CP 686-K of 2019 -: 6 :- auctioned property in the name of the successful bidder/purchaser, unless a delayed application is entertained in the circumstances. Once the sale is confirmed and made absolute, the Court grants a sale certificate to the successful bidder/purchaser under Order XXI Rule 93 CPC and gives the sale proceeds necessary for the satisfaction of the decree to the decree- holder under Order XXI Rule 64 CPC, thereby bringing the execution proceedings to an end. It is in the context of these different stages of execution proceedings that we now proceed to discuss the legal issues involved in this case. Highest Bidder vis-à-vis Legitimate Expectation 9. Before discussing the central issue of legitimate expectation, we think it is pertinent to decide on the legal effects that follow when a bidder is declared the highest bidder at the end of a court auction involving sale of immovable properties. In this regard, this Court has repeatedly held that the nature of a bid made in such auctions, notwithstanding whether it is the highest or the lowest, is that of an offer which does not by itself give rise to any rights, as the same is always subject to acceptance by the Court after proper application of its judicial mind followed by the deposit of full purchase-money under Order XXI Rule 85 CPC. This position was fortified in Muhammad Attique v Jami Limited (PLD 2010 SC 993), wherein a three- member bench of this Court held that “a bid made at an auction is in the nature of an offer which does not mature into a contract till its acceptance.” In this regard, reference can also be made to Navalkha & Sons v Ramanya Das [(1969) 3 SCC 537], Union Bank of India v Official Liquidator [(2000) 5 SCC 274], and FCS Software Solutions LTD v LA Medical Devices LTD [(2008) 10 SCC 440]. 9A. Indeed, this position is understandable from a jurisprudential point of view as well. As we know, except inherent human rights, rights and CP 686-K of 2019 -: 7 :- liabilities generally arise out of legal relationships that exist in the society, be they between the state and the citizens or among the citizens themselves. Since a bid, being an offer, standing alone does not create any such relationship, and neither does the aforesaid deposit, it logically follows that no rights can be said to arise out of the same. According to the Muhammad Attique case, such relationship is created only when a bid is accepted by the Court in due exercise of its judicial discretion and the successful bidder/Purchaser deposits the full purchase-money before the Court closes on the fifteenth day from the sale of the property meaning thereby from the date of acceptance of the bid by the Court in terms of Order XXI Rule 85 CPC. The word employed in Order XXI Rule 85 CPC for providing the time line for the deposit of balance sale price is “fifteen days from the sale” and the sale factually takes place when the bid is accepted by the Court. In case the proposition that the declaration by the Court Auctioneer as highest bidder is to be treated as sale is accepted then it would amount to devolving the duty/function of the Court to see the appropriateness of the bid on the auctioneer which under no circumstances is permissible as functions of the Court cannot be delegated. Beside the Court always withhold the power to reject any or all the bids without assigning any reason which itself reflect that the declaration by the Auctioneer as the highest bidder is not a sale, therefore, to ask the highest bidder “to deposit the balance sale price” upon being declared as the highest bidder would be highly unfair and would amount to asking him to deposit the entire purchase price and then wait if his bid is accepted by the Court or not which is against the spirit of Order XXI Rule 84 and 85 CPC. 9B. It is to be kept in mind that the declaration of the highest bidder at the end of an auction is merely to let the participant bidders know who is to deposit the earnest money in terms of Order XXI Rule 84 CPC. As to the creation of legitimate expectation in favour of the highest bidder to the sale of subject property, such CP 686-K of 2019 -: 8 :- expectation is of course created in favour of the highest bidder but against the other bidders, making him expect that his/her offer shall be accepted by the Court and the property in question against other competitors will be transferred in his/her name after all the legal requirements have been met. However, it should be borne in mind that such expectation does not give rise to any right much less vested right in the property, for such rights are created, as is discussed hereinafter, only when a bid is accepted by the Court after proper application of its judicial mind and, in consequence thereto, the full purchase-money is deposited as aforesaid. Acceptance of the Bid vis-à-vis Vested Rights 10. The issue as to when vested rights are created in favour of a bidder in such proceedings has been previously addressed in three pronouncements of this Court. In Hudaybia Textile Mills LTD v Allied Bank of Pakistan LTD (PLD 1987 SC 512), this Court held that “once a sale has been effected, a third party interest intervenes which cannot be disregarded.” The question as to when sale is effected in execution proceedings involving auction of immovable property was considered in the Muhammad Attique case, wherein this Court held that in cases involving court auctions of immovable properties “the contract/sale comes into being when the bid is accepted by” the Court. This position was reiterated in Muhammad Khalil v Messrs. Faisal M.B. Corporation (2019 SCMR 321) – albeit in slightly different terms, wherein this Court held that “it needs no reiteration that an auction is always subject to confirmation by the Court.” This Court then held that since “the executing court never confirmed the auction. Therefore, no vested right had accrued in favour of the auction purchaser.” 10A. A holistic reading of these judgments, along with the provisions of Order XXI, reveals that in execution proceedings involving court auction of immovable property, so-called vested/third party rights accrue in favour of a bidder when the auction-sale becomes complete, i.e. when a bid is accepted by the Court and thereafter the full purchase-money is deposited in terms of Order XXI Rule 85 CPC. However, such vested rights again are defeatable and would not take away the right of the CP 686-K of 2019 -: 9 :- mortgagor to redeem his/her property if s/he brings his/her case within the parameters of Order XXI Rule 89, Rule 90, or Rule 91 CPC. If, however, no application under these provisions is made within the time limit prescribed by law or the same is rejected, the Court mandatorily confirms the qualified sale and makes it absolute under Order XXI Rule 92 CPC, transferring the title of the property in the name of the successful bidder/purchaser, unless a delayed application to set aside the sale is entertained. The property is then deemed to have been vested in the purchaser, per Section 65 of the CPC, since the time when sale became complete. It is a known fact that the Court sale is a forced sale and, therefore, contain certain elements of risk with a chance of litigation and for this very reason properties auctioned by the Courts do not fetch the price which it would in sale between two private persons. This inter alia, is for the reason that the law provides maximum opportunities to the mortgagor to redeem the property and discourages any clog against the equity of redemption and as a last recourse when the mortgagor fails to avail all the opportunities provided under the law extinguishes the right of redemption. However this does not, by any stretch of imagination, would mean to provide undue favour by prolonging the execution or auction proceedings. The auction once conducted successfully then the Auctioneer’s report must be taken up in Court for orders at the earliest if not on the next day accepting or rejecting the sale. To prolong the proceedings or to keep the Auctioneer report pending for months altogether as was in this case not only discourages the public in general to participate in Court sale but effects the sanctity of the proceedings and also cause loss to financial institutions and recovery of public money. Examination of the Petitioner’s case 10B. If we consider the facts of the instant case in light of the foregoing discussion, it becomes immediately clear that no such acceptance was ever tendered by the executing court. In fact, the Court refused to accept the Petitioner’s bid vide order dated 20.10.2018. Without the requisite acceptance, his bid was merely an offer that did not result into a complete sale out of which vested CP 686-K of 2019 -: 10 :- rights could have accrued in his favour. In this regard, the reliance placed by the learned counsel for the Petitioner on the Hudaybia Textile Mills case in favour of the position that vested rights accrued in the latter’s favour at the time when he was declared the highest bidder, before the acceptance of his bid by the court, is misplaced. It is misplaced because the same is based on misreading of the said judgment and is therefore contrary to the settled legal position on this issue. It is pertinent to note that in Hudaybia Textile Mills case, the court had accepted the bid and the sale had been completed, giving rise to vested rights in the auctioned property. In contrast, the factual scenario in the instant case is distinguishable from the Hudaybia Textile Mills case, as the bid of the Petitioner in this case was never accepted by the executing court. As such, no vested rights accrued to the Petitioner on the basis of which he could apply for the confirmation of sale under Order XXI Rule 92 CPC as of right. Furthermore, the delay which took place between the declaration of the Auctioneer and the order of the Court rejecting the bid was on account of the fact that the Petitioner himself had made an application for refund of the deposited amount on the ground that the subject property was under some sort of litigation and that he therefore had no intention to buy such property. Though ASC for the Petitioner has pleaded that on deposit of the balance sale price this application had become infructuous, but admits that this application was never withdrawn. This argument does not appeal to us that on the one hand the Petitioner has clearly given in writing that he does not want to buy the property under litigation and on the other hand he has deposited the whole amount while keeping his application alive. In our opinion, the only answer to justify such contrary actions appears to be that the Petitioner wanted to save his initial deposit of Rs.24,000,000/- from the peril of forfeiture under Order XXI Rule 85 CPC. Besides, the Petitioner has made no efforts to ensure that a court order accepting or rejecting the bid is made in due time which perhaps could be on account of non-availability of the Presiding Officer as asserted by the ASC for the Respondent No.4. Under these circumstances, there was no clog on the equity/right of redemption as it was neither narrowed down to be exclusively challenged under the provisions of Order XXI Rules 89, 90 and 91 CPC nor extinguished. CP 686-K of 2019 -: 11 :- 11. The foregoing are the reasons for the Short Order of even date whereby this petition was dismissed by declining the leave to appeal, which reads as follows:- “For the reasons to be recorded later, this petition is dismissed by declining the leave.” Judge Judge Karachi, the 8th September, 2020 Approved for reporting Asad Ullah Khan, LC.

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In the Supreme Court of Pakistan (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali Mr. Justice Umar Ata Bandial C.P.L.A. No.689-L of 2015 (On appeal from order of Lahore High Court, Lahore dated 4.3.2015 passed in W. P. No.9233 of 2014) Kareem Nawaz Khan Petitioner Versus The State through PGP & another Respondents For the petitioner: Mr. Abid Saqi, ASC Respondents: N.R. Date of hearing: 1.6.2015 Order Anwar Zaheer Jamali, J – By this civil petition, leave to appeal is sought by the petitioner against the order dated 4.3.2015, in writ petition No.9233 of 2014, passed by learned Division bench of the Lahore High Court, whereby his petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking the following relief, was dismissed:- “For the foregoing reasons it is most respectfully prayed that by accepting the instant writ petition order dated 19.2.2014 passed by learned Special Judge, Anti-Terrorism Court, Sargodha may kindly be modified, application moved by the petitioner regarding the compromise having been arrived at between the petitioner and legal heirs of the deceased may kindly be accepted in respect of offence under section 7 read with section 21(l) of Anti-Terrorism Act of 1997 and the C.P. No.689-L of 2015 2 petitioner may very graciously be acquitted of the charges against him forthwith. Any other relief, which this Honourable court deems fit and proper may also be granted.”. 2. The brief facts of the case are that petitioner was the nominated accused in F.I.R. No.101 dated 30.6.2007, Police Station Moch, District Mianwali, for commission of offence under section 302 PPC, read with section 7 of the Anti-Terrorism Act 1997 (“the Act of 1997”), for committing qatl-i-amd of Mst. Qudsia Yasmeen, Karam Dad and Mst. Tasleem Akhtar. After the completion of investigation, he was sent up for trial before the Anti Terrorism Court, Sargodha, where, after conclusion of trial, vide judgment dated 2.2.2009, he was convicted and sentenced as under:- “(i) Under section 302(b) PPC, for qatl-i-Amd of Qudsia Yasmeen, Karam Dad and Tasleem Akhtar sentenced to death on three counts with direction to pay Rs.1,00,000/- on each account as compensation to legal heirs of deceased as required under section 544-A Cr.P.C. and in case of default in payment thereof, to undergo S.I. for six months. He is also burdened to pay diyat to the legal heirs of the deceased. (ii) Under section 7(a) of the Anti-terrorism Act, 1997, he was sentenced to death with fine of Rs.1,00,000/- and in case of default in payment of fine, to undergo S.I. for three years. (iii) Under section 21(L) of the Anti-Terrorism Act 1997, he was sentenced to undergo R.I. for five years alongwith with fine of Rs.20,000/-.”. C.P. No.689-L of 2015 3 3. The above referred judgment of the Anti- Terrorism Court, Sargodha was challenged by the petitioner before the Lahore High Court, Lahore through criminal appeal No.187 of 2009, which was dismissed, vide judgment dated 16.11.2010, thus, all the sentences awarded to him were accordingly confirmed. These two judgments were then challenged by the petitioner before the Apex Court through criminal petition No.1245-L of 2010, which was dismissed and leave was refused, vide order dated 5.6.2012. In this manner, conviction of the petitioner, and the sentences awarded to him by the Anti- Terrorism Court attained finality. 4. On 20.9.2013, the petitioner filed an application under section 338-E PPC before the trial Court for effecting compromise with the legal heirs of the three deceased/victims of the occurrence, whereupon further proceedings, as required by law, were held and on that basis such application was allowed by the trial Court, vide its order dated 19.2.2014 to the extent of compoundable offences under section 302 PPC, while the conviction and sentence awarded to the petitioner under sections 7(a) and 21-L of the Act of 1997, being non-compoundable, were maintained. Against this order of the trial Court, on 3.4.2014 the petitioner preferred writ petition No.9233 C.P. No.689-L of 2015 4 of 2014 before the Lahore High Court, Lahore, which was heard and dismissed vide impugned order dated 4.3.2015. 5. We have heard Mr. Abid Saqi, learned ASC for the petitioner and perused the material placed on record. During his arguments, after summarizing the relevant facts, learned ASC has referred an order of this Court dated 23.4.2015, whereby making reference to an earlier order dated 22.4.2015, hearing of appeal No.1772 of 2008 and civil petition No.1708 of 2011 were adjourned and execution of sentence to the appellants/petitioners was suspended with the observation that the issue whether after compromise in an offence under section 302(b) PPC sentence under section 7 of the Act of 1997 can be maintained independently, was sub-judice before a larger Bench. Suffice it to say that leave granting order has no binding effect as against the settled legal proposition in this regard as discussed, inter alia, in the above cited cases. 6. The only short point for consideration before us is whether compounding of an offence under section 302(b) PPC with the legal heirs of the deceased will ipso- facto dilute the effect of conviction of an accused under section 7 of the Act of 1997 or once such conviction has been maintained upto the level of Supreme Court, subsequent compromise with the legal heirs of the C.P. No.689-L of 2015 5 deceased will have no bearing on it, being a past and closed transaction. 7. Admittedly, the conviction and sentences awarded to the petitioner by the Anti-Terrorism Court, Sargodha had attained finality upto the level of Apex Court. The petitioner had, thereafter, moved an application under section 338-E PPC for effecting compromise with the legal heirs of the three victims of the occurrence, which was accepted to that extent by the trial Court in terms of the order dated 19.2.2014. However, his conviction and sentence under sections 7(a) and 21-L of the Act of 1997, being non-compoundable, were maintained. Before the High Court the legality and propriety of such order of the trial Court was re-examined in detail and the petition was accordingly dismissed with the observation that the offence under section 7(a) and 21-L of the Act of 1997, were independent and non-compoundable, therefore, the order of the trial Court was in accordance with law and needed no interference from the High Court. 8. In so far as the facts of the case are concerned, the same are not disputed. In this background as to the independent nature of conviction under the provisions of the Act of 1997, being non-compoundable, further guidance can be sought from the judgments of this C.P. No.689-L of 2015 6 Court in the case of Muhammad Amin versus the State (2002 SCMR 1017), Muhammad Rawab versus the State (2004 SCMR 1170), Shahzad versus Judge, Anti-Terrorism Court (2005 SCMR 1162) and Muhammad Akhtar versus the State (PLD 2007 S.C. 447), which clearly provide that the offence under section 7(a) of the Act of 1997 is an independent one, which is non-compoundable, thus the sentence awarded under this provision of law is also independent to other sentences under section 302(b) PPC etc., which may be compoundable in nature. Therefore, in view of the bar contained in sub-section (7) of section 345 Cr.P.C., conviction of an accused under the Act of 1997 will remain intact despite compromise in other sentences in compoundable offence. 9. This being the position, we have no doubt in our mind to hold that the impugned order as well as the order of the trial Court, passed on the application of the petitioner under section 338-E PPC are in conformity with the relevant provisions of law, thus call for no interference. 10. As a result of above discussion, leave is refused and this petition is dismissed. Islamabad, 1st June, 2015 Not approved for reporting. Riaz Judge Judge C.P. No.689-L of 2015 7

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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.69-Q of 2015 (Against the judgment dated 04.02.2015 passed by the High Court of Balochistan in C.P. No.631/2014) Jamal Khan …Petitioner(s) Versus Secretary Home Department …Respondent(s) For the Petitioner(s): Mr. Abdus Saleem Ansari, ASC Mr. Manzoor Ahmed Rehmani, ASC For the Respondent(s): N.R. Date of hearing: 09.09.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Jamal Khan, petitioner, is in contest over a piece of land with rival claimants; they relied upon an arbitration agreement, purportedly executed way back on 2.2.2000; according to him, the instrument is fake as he never thumb marked any such agreement and, thus, the respondents were liable to be prosecuted for forgery and fraud. After his failure with the local police, the petitioner approached a Justice of Peace albeit with no better fate; a learned Division Bench of the High Court of Balochistan declined to issue a direction for registration a criminal case on the ground that prima facie the dispute inter se the parties was of civil nature as both sides were asserting their divergent claims on a common land. Inordinate delay and availability of alternate remedies were other considerations that weighed with the High Court. 2. Learned counsel for the petitioner contends that accusation disclosed commission of a cognizable offence and as such a statutory duty was cast upon the Station House Officer to register a Civil Petition No.69-Q of 2015 2 formal First Information Report so as to investigate the same and his failure was amenable to interference. 3. Heard. 4. Be that as it may, at the center of controversy is a thumb impression on an arbitration agreement being attributed to the petitioner, however, repudiated by him as forge. Report submitted by the police does not support petitioner’s claim and there is consensus that both sides are locked in a dispute of civil nature. Against the above peculiar backdrop, refusal by the Justice of Peace to issue direction to the Station House Officer and non-interference by the High Court therewith do not suffer from any jurisdictional error or flaw calling for intervention by this Court. Petition fails. Leave declined. Judge Judge Islamabad, the 9th September, 2020 Not approved for reporting Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR CIVIL PETITION NO.692 OF 2020. (Against the order dated 16.12.2019 passed by the Federal Service Tribunal, Islamabad in Appeal No. 52(R)CS of 2018). Director General Federal Directorate and another. Petitioner(s) Versus Tanveer Muhammad and another. . . . Respondent(s) t For the Petitioner(s) For Respondent No.1 Date of Hearing: Moulvi Ejaz ul Haq, DAG. Mr. M. Ahmed, A.D. (L) FDE. Syyeda B. H. Shah, AOR. In person. 18.12.2020. ORDER IJAZ UL AHSAN, J.- Leave to appeal is sought against a judgment of the Federal Service Tribunal, Islamabad dated 16.12.2019. Through the impugned judgment a Service Appeal filed by the petitioner was partly allowed to the extent that the penalty of dismissal from service was converted into withholding of increment for a period of five years. The Appellant was reinstated into service from the date of his dismissal. 2. Briefly stated the facts of the case are that the Respondent was employed as a Chowkidar and was performing his duties in the Federal Directorate of Education, ( CIVIL PETITION NO.692 OF 2020, 2 Headquarter at Islamabad. While on a visit to his parent Institution on 12.05.2015 i.e. Islamabad Model School No.2, Sector G-8/2, Islamabad he had an altercation with Mst. Parveen Akhtar, Aya of the said school. He allegedly physically assaulted her, used abusive language and threatened her in various ways. The occurrence was seen by various members of the school staff including the Principal. She lodged a complaint against the Respondent before the Federal Ombudsman under Protection against Harassment of Women at Workplace. She also lodged an FIR against the Respondent with the concerned Police Station. The Federal Ombudsman referred the matter to the department with a direction to conduct an inquiry. Show cause notices dated 10,11.2015 and 12.01.2016 under E&D Rules were issued to the Respondent. After processing the matter and conducting an internal inquiry, major penalty of dismissal from service was imposed on the Respondent vide order dated 10.05.2016. His departmental appeal was rejected on 23.11.2017. Aggrieved, he approached the Federal Service Tribunal, Islamabad. Such appeal was allowed. 3. Moulvi Ejaz-ul-Haq, learned Deputy Attorney General appearing on behalf of the petitioner submits that there were serious allegations of physical violence resulting in multiple injuries to the victim which were duly reflected in the medico-legal report ("MLR"). The said position was also confirmed by eye-witnesses who were examined by the Committee. Such acts of violence and especially against ' CIVIL PETITION NO.692 OF 2020. 3 women within the premises of a school constituted serious misconduct and was appropriately punished by the competent authority. He further submits that imposition of major penalty of dismissal from service was justified in the facts and circumstances of the case. The Tribunal therefore had no lawful reason or justification to modify the penalty and reduce it to stoppage of increments for five years. He submits that it is settled law that mere fact that the Respondent was acquitted in criminal proceedings does not constitute basis for interfering in departmental proceedings because the same are separate and distinct matters under different laws and requiring different standards of proof. 4. The Respondent is present in person and submits that the occurrence in question did not take place. He maintains that the victim had a grudge against him and had started the fight herself and he only held her arms to prevent her from inflicting any physical injury on him. He further submits that the action taken by the department was harsh and disproportionate to the gravity of the offence allegedly committed by him. 5. We have heard the learned Deputy Attorney General as well as the Respondent present in person and also gone through the record. 6. We find that there is sufficient and adequate material on record to establish the charge of using physical violence against Mst. Parveen Ak.hter, Aya of the school. The CIVIL PETITION NO.692 OF 2020. 4 said fact was substantiated not only by the eye-witness account but also corroborated by the Medico Legal Report which confirmed commission of physical violence and infliction of injuries on the person of the victim. The internal inquiry found him guilty of all charges. No bias partiality or mala fides is alleged against the inquiry Committee. The Respondent was given fair opportunity to defend himself which he failed to do. The fact that the Respondent was acquitted by the Court of Judicial Magistrate, Islamabad is inconsequential in view of the fact that the departmental proceedings which were independently undertaken are separate and distinct proceedings and have a different standard of proof. In accordance with service laws and departmental procedure, the said standard was adequately met. Further, the Tribunal has itself recorded findings to the effect that "no doubt the appellant has committed misconduct but the penalty imposed upon the appellant by the respondents is too harsh and does not commensurate with the charge". 7. We are afraid, we do not subscribe to the said finding of the Tribunal for the reason that the Respondent had physically assaulted and tortured a female worker of the school. Such violence was perpetrated within the school premises which violated the sanctity of an educational Institution. In our opinion this constitutes an act of gross misconduct. We also notice that the internal inquiry Committee consisted of three independent Senior Officers a ç CIVIL PETITION NO.692 OF 2020, 5 namely Ms. Farida Yasmeen, Director School (Female), Major Abdul Waheed Khan, Deputy Director (C&M Cell), Member and Mr. Muhammad Azhar Khan, Supervisor (Monitoring) Member. The said Committee acted fairly, in accordance with law and gave the Respondent ample opportunity to defend himself. The charges of harassment, violation of service norms by physical violence and torture perpetrated on Mst Parveen Akhter, Aya of the school, use of blackmailing tactics and spoiling the congenial environment and sanctity of the Educational Institution stood fully established. In the face of proof of such charges, we fail to understand how the penalty imposed by the department was "too harsh or not commensurate" with the offence alleged against the Respondent. Further, the judgment of the Tribunal is devoid of any reason let alone cogent for converting the major penalty of dismissal from service into withholding of increments for a period of five years. 8. This Court has repeatedly held that where the Tribunal exercises jurisdiction under Section 5 of the Service Tribunals Act, 1974, legally sustainable reasons must be recorded. Merely and casually making an observation that the penalty imposed is not commensurate with the gravity of the offence is not enough and constitutes arbitrary capricious and unstructured exercise of jurisdiction. The order must show that the Tribunal has applied its mind to the facts and circumstances of the case and exercised its discretion in a structured, lawful and regulated manner keeping in view the CIVIL PETITION NO.692 OF 2020. 6 dicta of superior Courts in the matter. All of the above factors are conspicuous by their absence in the judgment of the Tribunal impugned before us. We, therefore, find the impugned judgment of the Tribunal to be unsustainable and liable to be set aside. 9. For reasons recorded above, this petition is converted into an appeal and allowed. The impugned judgment of the Federal Service Tribunal dated 16.12.20 19 is set aside. The punishment imposed by the department is restored and affirmed. ISLAMABAD. 18.12.2020. Zubair/ * hAtet Approved For Reporting'

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Amir Hani Muslim Mr. Justice Ejaz Afzal Khan Mr. Justice Tariq Parvez CIVIL PETITION NO.701 OF 2016 (On appeal against the judgment dated 04-12-2015 passed by the Peshawar High Court, Peshawar, in Writ Petition No.1796-P/2015) Peshawar Electric Supply Company Ltd … … Petitioner. Versus Wafaqi Mohtasib (Ombudsman) … … Respondents Islamabad and others For the Petitioner : Mr. Abdul Rauf Rohaila, ASC Mr. M. S. Khattak, AOR For Respondents (1-2) : Hafiz Ahsan-ud-Din Khattak, AOR Raja Abdul Ghafoor, AOR On Court Notice : Rana Waqar Ahmed, Addl. AG Date of hearing : 25-07-2016. JUDGMENT AMIR HANI MUSLIM, J. - Through these proceedings, the Petitioner has impugned the judgment dated 04.12.2015, of the Peshawar High Court whereby Writ Petition filed by the Petitioner against the order of Wafaqi Mohtasib was dismissed, inter alia, on the ground that the Petitioner has failed to avail the alternate remedy provided under Article 32 of the C.P.No.701/16. 2 Establishment of the Office of Wafaqi Mohtasib Order 1983 (hereinafter referred to as the Order). 2. The relevant facts of the case are that owing to the unsatisfactory performance of WAPDA, its power wing was privatized and distribution companies were created in various areas for distribution of electricity which, for operational purposes, seek guidance from PEPCO. The Peshawar Electric Supply Company (Pvt.) Ltd (PESCO) was created and incorporated under the Companies Ordinance, 1984, to distribute electricity in the Province of Khyber Pakhtunkhwa. PESCO has no statutory rules and its employees are regulated by the service rules of WAPDA, PEPCO and Government Service Rules. 3. On 08.04.2004, WAPDA issued an Office Order, directing, inter alia, that 20% of the posts in BS-01 to BS-09 in all categories are reserved for the children of WAPDA deceased or retired employees and employees who died during service. The point in issue between the parties is that certain persons filed applications before the Wafaqi Mohtasib for a direction to the PESCO to appoint them in the PESCO against the said 20% quota, after relaxing certain conditions. Thereafter, the Wafaqi Mohtasib made recommendations for their appointments after relaxing the prescribed conditions. Not only that, the Wafaqi Mohtasib also C.P.No.701/16. 3 issued notices to the PESCO for implementation of these recommendations. 4. The PESCO impugned the recommendations of the Wafaqi Mohtasib and the letters for implementations before the Peshawar High Court, through a Writ Petition which was dismissed vide impugned judgment dated 04.12.2015, inter alia, on the ground of maintainability. Hence this Petition for leave to Appeal. 5. The learned Counsel for the Petitioner has contended that the jurisdiction of the Ombudsman is dependent on the provisions of Article 9 of the Order. According to him, Article 9(1) clearly demarcates powers conferred on the Ombudsman under the Order. In substance, the jurisdiction of the Ombudsman to entertain a complaint is dependent on the term “mal- administration” used in Article 9. He submits that neither the Ombudsman has the power to order and recommend any appointment in the Petitioner-Company, nor can it implement the recruitment policy of the Petitioner-Company, in view of bar contained under Article 9 of the Order. In support of his contention, he has relied upon the case of Raft Ullah Khan v. Settlement Commissioner, Lahore (1998 SCMR 84). C.P.No.701/16. 4 6. As against this, the learned Additional Attorney General while supporting the impugned judgment, has contended that the term “mal-administration” includes recruitment policy and the Ombudsman can recommend the appointment of this nature. He next contended that the Ombudsman can recommend under Article 9 of the Order for appointment on the 20% quota of the Petitioner’s employees by relaxing the age. 7. We have heard the learned Counsel for the Petitioner, the learned Law Officer and have perused the record with their assistance. The legislature has established the office of the Wafaqi Mohtasib by introducing the Order of 1983. By an Act XIV of 2013, called the Federal Ombudsman Institutional Reforms Act, the legislature has further supplemented the aforesaid Order. Both these legislative instruments are meant to confer powers on the Wafaqi Mohtasib to deal with the complaints of mal-administration against the public functionaries as provided under Section 2(2) of the Order. 8. It is not possible to mould the term “mal- administration” used in Article 9(1) of the Order under a rigid definition. The dictionary meaning of the term ‘mal administration’ is “to handle a matter inefficiently or improperly”. In its wider sense, it refers to various types of mal-practices which C.P.No.701/16. 5 are opposed to law, fair play and principles of equity and justice. In common parlance, the introduction of the office of the Ombudsman and the conferment of powers upon it through the Order was styled to check administrative excess and abuses of bureaucracy. However these powers, within the Order, are not absolute and are subject to the restrictions contained in Article 9 of the Order. In other words, the Wafaqi Mohtasib can only exercise powers which are not in conflict with the language of Article 9 (1) and (2) of the Order. The term “mal-administration” has been interpreted by this Court in a number of cases reported as Muhammad Mumtaz Khan Bhaba vs. Special Court of Mr. Justice Munir A Shaikh, (1994 SCMR 728), Shafaatullah Qureshi v. federation of Pakistan (PLD 2001 SC 142) and Capital Development Authority vs. Zahid Iqbal (PLD 2004 SC 99) 9. In the case in hand, the learned High Court while dismissing the Writ Petition of the Petitioner has, inter alia, held that the Petition was not competent as an alternate remedy, in terms of Article 32 of the Order, was available. The grievance of the Petitioner was that the Wafaqi Mohtasib did not have the jurisdiction to order and or recommend the appointment of a person on the 20% quota reserved for the employees of different categories referred to in paragraph 3 above, who were admittedly C.P.No.701/16. 6 over age. We have to examine as to whether the Order confers authority on the Ombudsman to entertain grievance of the nature under the garb of powers granted to him under Article 9 of the Order. In other words, whether the Wafaqi Mohtasib can recommend the appointment of this nature by relaxing the upper age limit of a person? We are of the considered view that the appointment and or recruitment in a public sector company like Petitioner is an executive function and such function cannot be performed by the Wafaqi Mohtasib under Article 9 of the Order which excludes his jurisdiction to entertain a complaint of the nature. 10. If, ex facie, the Ombudsman is not conferred with such a power, and the order of the nature is passed by it, the High Court can always in exercise of its constitutional jurisdiction rectify such error. An alternate remedy provided under Article 32 of the Order cannot restrict the Constitutional jurisdiction of the High Court once it comes to the conclusion that the Order of the Wafaqi Mohtasib was outside the domain of Article 9. Sub-Article 2 of Article 9 clearly indicates that jurisdiction of Wafaqi Mohtasib is expressly excluded in cases of personal grievances of public servants or functionaries serving in any “Agency” in respect of the matters relating to their service. The term “Agency” has been C.P.No.701/16. 7 defined in Article 2(1) of the Order which means a Ministry, Division, Department, Commission or office of the Federal Government or a statutory corporations or other institution established or controlled by the Federal Government. The Petitioner is a Company and is controlled by the Government and clearly falls within the purview of term “Agency”, therefore, the jurisdiction of Wafaqi Mohtasib is barred under clause 2 of Article 9 of the Order. 11. The question as to whether the learned High Court can entertain a Constitutional Petition against an order of the Wafaqi Mohtasib, it is well established law that his order can be interfered with by the learned High Court in exercise of its constitutional jurisdiction if the Petitioner satisfies that the order of the Wafaqi Mohtasib is without jurisdiction. We have not lost sight of Article 32 of the Order which provides alternate remedy to the aggrieved to approach the President of Pakistan by filing a representation against the Order of Wafaqi Mohtasib, but where the Order of the Wafaqi Mohtasib, on the face of it, is against the language of Article 9 of the Order or without jurisdiction, the High Court can exercise its constitutional jurisdiction so as to prevent injustice done to an aggrieved. C.P.No.701/16. 8 12. In this backdrop we are satisfied that the jurisdiction of Wafaqi Mohtasib is limited as provided under Article 9 of the Order and he cannot order and or recommend appointment of a person in the Petitioner-Company under any of the categories mentioned hereinabove which power rests with the executive authorities. The above are the reasons for our short order which reads as under:- “For reasons to be recorded later, this petition is converted into Appeal and allowed. The impugned judgment is set aside.” Judge Judge Judge Islamabad the, 25th July 2015. Not approved for reporting. Sohail/**

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Anwar Zaheer Jamali Mr. Justice Dost Muhammad Khan Civil Petition No.70/2014 (On appeal from the judgment dated 5.11.2013 passed by the Peshawar High Court, Peshawar in W.P.No.1643-P of 2012) Tariq Khan …Petitioner VERSUS Govt. of KPK thr. Secy. Irrigation, Mardan & others ….Respondents For the petitioner: Mr. Amjad Ali, ASC Mr. M.S. Khattak, AOR For the respondents: N.R. Date of hearing: 04.03.2014 ORDER Dost Muhammad Khan, J.— CMA 762/2014: Through this CMA, the petitioner seeks the permission of the Court to place on record, additional documents, which is allowed. Hence the same is disposed of. Civil Petition No.70/2014 2. Leave to appeal has been sought through this petition against the judgment of a Division Bench of the Peshawar High Court, Peshawar dated 5.11.2013 dismissing Writ Petitions No.1643-P/2012, 2639-P/2012 and 380-P/2013 because identical CP 70 of 2014 2 question of law and the facts were involved in all the three petitions. 3. Arguments of the learned ASC heard and available record perused. 4. The official respondents advertised 10 vacant posts, to be filled up as Revenue Inspectors (BPS-10). The petitioner being eligible, applied and participated in the test conducted by the respondents and secured 66 marks out of 100 marks, thus, stood first, however, in the meanwhile the Government of KPK, Irrigation Department re-structured the Irrigation Circle Mardan, probably, for administrative convenience and efficient service delivery. Mardan Irrigation Circle was made independent, whereas, Sawabi Circle was created besides the Malakand Circle. 5. Respondent No.2 re-advertised 22 vacant posts of Revenue Inspector, while rest of the 10 vacant posts of Revenue Inspectors were independently advertised by the Sawabi Irrigation Circle. 6. The petitioner questioned the cancellation of the earlier result of the test conducted for the 10 vacant posts, the re- advertisement of the posts and re-conducting the test for the same through W.P.No.2639-P/2012 and W.P.No.380-P/2013. However, without pursuing the remedy so chosen by himself, he willingly participated in the test and interview, freshly held. This time, the petitioner could not secure any position entitling him to be appointed against any vacant post, so advertised. Thus, he filed W.P.No.1643-P/2012, challenging the entire process subsequently CP 70 of 2014 3 conducted by the official respondents, on the basis of allegation that it was done on political consideration; was unfair and his accrued right was disturbed in an unwarranted manner. However, after dealing with each and every aspect of the case and the contentions of the petitioner, the Division Bench of the Peshawar High Court, Peshawar dismissed all the three writ petitions as no element of malafide, ill will or any consideration other than merits, was established. 7. We have gone through the impugned judgment and we are of the firm view that learned Judges of the Division Bench of the Peshawar High Court have taken the correct view of the subject matter, elaborately dealing with each and every aspect of the case and that once the petitioner has participated in the subsequent test and interview, through such conduct, he forfeited his right to pursue the earlier writ petitions, referred to above, which were still pending disposal before the High Court. 8. No element of discrimination has been found by us because it was not only the petitioner but all the successful candidates, who passed the earlier test, result of which was cancelled by the official respondents, have not shown any grievance against that process, probably because of the government’s notification, re-structuring Mardan Irrigation Circle, dividing it into three Divisions. 9. No solid evidence or material has been brought on record to establish that the petitioner was given discriminatory treatment or any deliberate attempt was made by the official CP 70 of 2014 4 respondents thwarting his way to succeed in the test and the interview. 10. Thus, in the absence of any such material no adverse inference can be drawn against the exercise carried out by the official respondents. Accordingly, this petition is dismissed and leave to appeal refused. Judge Judge Islamabad, the 4th March, 2014 ‘Nisar’ Not Approved For Reporting

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I. IN THE SUpRE1V1E COURT OF PAICISTAN (APPELLATE JURISDICTION) PRESENT- MR. JUSTICE IJAZ UL AN SAN MR. JUSTICE SAJJAD ALl SHAH Civil Petjt N of 2018 (On appej agaj, the 23.112017 the by the Lahore HiVh Court at Lah Inc. R. No. 14 012007) MUhmad Akbax and others Province of Punjab through DOR, Lodhran and others ResPondent(S) For the Petitioner(s): Mr. Aftab Alarn Yasir, ASc For Respofldeflt#2 Mr. Shahid Tabass ASC. Date of Hearing: 17.11.2021. JUDGMENT IJAZrJLA*fS,J Through the instant Petition the Petitioners have challenged ajudgmerit of the Lore High Court, Multan Bench Multan dated 23.11.2017 passed in Civil Revision No. 14 of 2007 (hereinafter referred to as "'n'Puglied Judgment-). The Respondents, through Civil Revision, their had challenged the judgment and decrees of the lower foradated 03.11.2006 and 15.03.2004 respectively, whereby, the suit of the Petitioner was dismissed. Court through the Impued Judg The High allowed the Civil Revision d set-aside the Udents of the lower fora noted above while decreeing the suit of the Respondents 2. The brief facts giving rise to this controversy e that the Respondents claimed that the parties to the us had equal shes in the Jot holdings measuring 179 g 13 Maria5 To settle their dispute regarding division the suit Civil Petition No.715.f 2016 2 property was divided through a family settlement. Pursuant to the same, Award dated 25.05.2000 was made and, the same was handed over to the Patwari (Consolidation) for its incorporation in the Revenue Record. In spite of the family settlement and Award, it has been alleged that Mutation No. 2332 dated 05.06.2000 (hereinafter referred to as "Impugned Mutation") was sanctioned whereby the property was given to the Petitioners. The Respondents filed an appeal against the order dated 05.06.2000 which was dismissed on 28.06.2002. The Respondents filed a revision thereagainst, under Section 164 of the Land Revenue Act, 1967, which was dismissed vide order dated 04.02.2003. The Respondents then challenged the order dated 04.02.2003 before the Member, Board of Revenue, which was dismissed vide order dated 31.07.2003. Thereafter, the Respondents filed a suit for declaration. The suit in question was dismissed by the trial Court vide judgment and decree dated 15.03.2004. The Respondents preferred an appeal thereagainst, which too was dismissed vide judgment and decree dated 03.11.2006. Aggrieved thereof, the Respondents filed a Civil Revision which was allowed vide the Impugned Judgment. The Respondents have now approached this Court for redressal of their grievance. 3. The learned ASC for the Petitioners has argued that the Impugned Judgment is a result of misreading and non-reading of evidence. He has further argued that the Impugned Mutation was sanctioned in the presence of the parties and could not have been declared by the High Court - Gin) Petition ivo. 715 OJIVId. 3 to be the outcome of connivance and fraud. The learned ASC has further argued that the findings of the High Court are violative of the fundamental rights of the Petitioners. 4. The learned Counsel for the Respondents has argued that the family settlement (hereinafter referred to as "Settlement") was proved and was also admitted by the Respondents. It has further been argued that Impugned Mutation was a result of connivance and fraud. He has further argued that there was another family settlement reached between the parties, which escaped the notice of the trial Court and the first Appellate Court. It has also been argued that once the Impugned Mutation was denied; onus to prove the same shifted on the Petitioners who failed to discharge the same. 5. We have heard the learned Counsel for the parties and have perused the record. The following questions require adjudication by this Court: - i. Was the Family Settlement proved and, the effect thereof; and ii. Could the Impugned Mutation be sanctioned; WAS THE FAMILY SETTLEMENT PROVED AND, THE EFFECT THEREOF 6. The learned High Court has held that the case at hand is one of clear admissions on part of the Petitioners with respect to the existence of the Family Settlement. In this regard, the High Court has relied upon the statement of DW-5 Civil PctThon Vo.715 oJ2018. 4 to hold that the admission(s) on part of the Petitioners coupled with documentary evidence clearly establish the fact that the Settlement in fact existed and, that the revenue officials could not sanction any mutation which was contrary thereto. The learned High Court has further held that the Settlement was validly executed and, did not require compulsory registration. The High Court has examined the case thoroughly in reaching the said conclusions. It is worth mentioning that DW-5 (Muhammad Shari]) was the Attorney of the Petitioners and his admission of the existence of the Family Settlement carries weight due to the fact that an admission made by Attorney is binding on his Principal who authorized him to do so, unless a contrary intention was proved on behalf of the Petitioners or that he was not so authorized. His statement has not been disowned. There is nothing on the record, neither has it been argued, that DW-5 was not the Attorney of the Petitioners. At no occasion was the said witness declared hostile or, his statement challenged. Further, the said Attorney made an unqualified admission regarding the existence of the Settlement between the parties. As such, his statements during examination in chief and cross examination were conclusive and can be used as evidence to prove the fact that the Settlement was reached and, the parties were well aware of it. Reliance in this regard is placed on Anees A. Sheikh v. Cot (Retd) Ghu tam Rasoot Qureshi (2005 SCMR 977 Supreme Court). Civil Petition No, 725 of 20)8. 5 7. The learned ASC for the Petitioners argued that the Settlement was not registered. As such, ignoring it was the right course of action adopted by the lower fora. We are unable to agree with this contention. Firstly, a fact which has been expressly and unequivocally admitted by the Petitioners through their Attorney, would not require proof. Reliance in this respect is placed on Karachi Metropolitan Corporation, Karachi v. RaheelGhagas (2002 PL.D 446 Supreme Court) wherein, this Court held as follows: - 10. Legal position is that facts admitted are not to be proved. After categorical admissions of the respondent No. I that said plot was in Scheme No.28 the Petitioners were not required to prove the same, although in spite of above it was proved by the Petitioners that it was in Scheme No.28, a planned area. Learned High Court brushed aside above admissions of the respondent No. I categorizing it as 'innocent admission'. Both First Appellate Court and High Court ignored the fact that the Petitioners in their written statement clearly stated that said plot was not a part of K.D.A. Scheme No.2, but it was a part of K.D.A. Scheme No.28. This fact was very well-known to the respondent No. I before he entered the witness-box.. He was, not taken by surprise. He had admitted the facts) mentioned earlier. Under the circumstances, there was absolutely no justification to ignore the aforesaid admissions of respondent No. 1 .. which by themselves were enough to demolish his case. Secondly, the deed in question was a family arrangement and not a regular partition deed, as rightly held by the learned High Court. As such, it did not require compulsory registration. Reliance in this respect is placed on Anwar Khan v. Abdul Manaf (2004 SCMR 1261, in which this Court held as under: - '5. We have carefully examined the contentions as agitated on behalf of -petitioner in the light of relevant provisions of law and record of the case. We have perused the judgment dated 27-9-2000 passed by learned Rent Controller, Quetta as well as the judgment impugned. We have thoroughly scanned the entire evidence which has come on record. We are not persuaded to agree with Mr. Basharatullah, teamed Senior Advocate Supreme Court that the partition of property by way of family arrangement by means of settlement/agreement (ExltA/1) dated 19-4-2000 is compulsorily registrable and in absence of registration the CWUPCILTIOflNO,715012018. 6 ownership could not have been devolved upon the respondent-landlord and eviction application could not have been filed by him having no A locus standi simply for the reason that such family settlement is saved from inadmissibility in evidence due to the elimination of sub- clause (c) from section 49 of the Registration Act and the prohibition contained in section 49 would no longer be operative. A careful perusal of partition document (ExhAl 1) executed between the parties would reveal that the property has been distributed by way of family arrangements. If the parties are not interested in partition of property on permanent transfer basis they cannot be forced or compelled to do so as it depends upon their whims and wishes to distribute the property in any manner as may be deemed fit and proper being their personal and family affair. In such an eventuality the question of registration of such agreement, does not arise. If any authority is required reference can be made to case titled Jahauzeb and others v. Muhammad Abbas 1999 SCMR 2182. Essentially, the Settlement operated as an agreement between the parties. This means that the parties to the Settlement were bound by the terms which were agreed between them. It has not been argued that the Settlement was a result of fraud or undue influence. As such, there is a presumption of validity attached to the said Settlement. It is pertinent to note that, the fact that it has been argued that the Settlement was not registered and therefore inadmissible in evidence, is itself an admission with respect to the existence of the Settlement. The Settlement in question was executed through the intervention of close relatives/ successors of the Respondents. As such, the High Court has correctly held that it did not require compulsory registration. 8. The Petitioners never challenged the Settlement before any forum which effectively means that the Settlement still binds the parties thereto and their legal heirs. It is a settled principle of the law that a charge created on a property passes with the property. The fact that a Settlement 00 ^tihOn No. 715 012018. 7 was reduced into writing means that the pasties intended to bind themselves by its terms. As such, the Petitioners at this stage cannot wriggle out of the Settlement merely on the basis that it was not registered. Reliance in this respect is placed on Allah Dad and 3 others v.Dhuman Khan and 10 others (ZOOS SCMR $64) wherein, this Court held as follows: - 'It is to be seen that the object behind the family settlement is always to settle existing or future dispute of the property amongst the members offamily and to create goodwill and avoid future disputes between the successorsjn.interest The bona fide transaction of family settlement would be binding on the parties and if the settlement by conduct of parties, is capable of receiving constant recognition for a long time, the right to assert under the agreement must not be subsequently allowed to be impeached and Courts may not reject the family settlement on technical grounds. COULD THE IMPUGNED MUTATION BE SANCTIONED 9. The learned High Court has held that Muhammad Bashir, one of the Plaintiffs, stated on oath that the family settlement was affected through Aizaz Ahmed, who divided the shares of the parties vide the Settlement Award. The Settlement Award was then handed over to the Patwari for incorporation in the relevant Register. However, the Patwarj procured their signatures/ thumb impressions on a blank 'Parat' of the mutation and, the Award was not given effect. Contrarily, the property which was to be given to the Respondents was given to the Petitioners through the Impugned Mutation. The onus to prove the Impugned Mutation shifted on the Petitioners as soon as its validity was challenged. The father of the Petitioners being their Attorney, specifically stated that the Settlement and Award were given to the Patwari. One of the attesting witnesses also stated this fact and further deposed that signatures and thumb Qvilperihon N.. 715 012018. 8 impressions were taken before the mutation could be sanctioned in line with the Award/Settlement 10. The Patwari was duty bound to sanction a mutation in accordance with the terms of the Award/Settlement placed before him. It is settled law that a Patwari does not have power to arbitrarily make entries in the relevant register and, must make such entries based on evidence before him. The fact that the Patwarj took signatures of the Respondents on a blank 'Pant' and later sanctioned the Impugned Mutation, goes to show that the Patwari did not perform his duty in accordance with the law. This furthers the stance taken by the Respondents that the Patwari's actions were tainted with mala fide. It has been observed by the High Court that the Patwari sanctioned the Impugned Mutation based on oral assertions. The fact that the Patwari did so is patently illegal and against the documentary evidence which has been placed before all fora. It has time and again been held by this Court that documentary evidence takes precedence over oral evidence. This is especially so when oral evidence/ assertions are in direct conflict with documentary evidence i.e., the Award/ Settlement. Reliance in this regard is placed on Sher Muhammad V. Muhammad Khalid (2004 SCMR 826 Supreme Court) wherein, this Court held the following: - 5. The concurrent findings of the said learned Courts are based on the overwhelming documentary evidence available on record. Both the Courts were one in holding, ., - 1Z41vr 1Qv cuma not be given areference over ihtsidomenta,, evidence The only two entries i.e. relating to Rabi 1973 and Kharzf 1973 which stood in OinIPenhon No./Jbof 2018. 9 favour of the petitioner-plaintiff were directed to be removed by the Collector of the District on an appeal filed before him. He had further ordered that the entries as they existed in Rabi 1972 should be restored. This order of the Collector was maintained in the second appeal filed by the petitioner before the Additional Commissioner of Sargodha who had dismissed the said appeal through an order dated .73-6-1979. In this view of the matter, the Honourable High Court and the learned A ppellate Court were justified in holding that the oral evidence offered by the Petitioner-plaintiff which was not su pported bt, the strong docunienlan., evidence available on record, could not be giver, can credit. The concurrent conclusions reached and the reasons offered therefore could not be said to be based either on misreading or non-reading of evidence. (Underlining is ours) The fact that the Patwari sanctioned the Impugned Mutation is admitted by him in cross-examination. The Patwari has claimed that he did not receive the Award/ Settlement. Nonetheless, there is nothing on the record which shows that the Patwari made any effort(s) to inquire about the genuineness of the claims made by the Petitioners. Rather, the Patwari has conceded that he sanctioned the Impugned Mutation based on oral claims made by the Petitioners. When the claim of the Petitioners was specifically opposed by the Respondents, the burden of proof shifted on the Petitioners to prove the authenticity of their claim. The Petitioners were unsuccessful in doing so and the learned High Court was correct in recording findings against them. 11. The Impugned Mutation was then upheld upto the level of Member (Consolidation), Board of Revenue, Punjab. It has been held by this Court in various pronouncements, that public officials owe a fiduciary duty to the public. They are to act in utmost good faith while discharging their duties. If a public official, especially one belonging to the revenue department, acts in a careless manner, his actions are bound On' Petition No.715 oJ2018. 10 to cause not only distrust amongst the public, but also loss to the public exchequer. As such, we find that the Impugned Mutation could not have been sanctioned and upheld especially since there existed an admitted document in the shape of the Settlement, on the record. The Patwari so also the other revenue officials misinterpreted the record and passed orders which were unsustainable. 12. We find that the learned High Court has proceeded on correct factual and legal grounds in the impugned judgment. The learned ASC for the Petitioners has been unable to point out any misreading or non-reading of evidence by the High Court while passing the Impugned Judgment. Further, no jurisdictional defect, error or flaw in the Impugned Judgment has been found that may warrant interference of this Court. The learned Counsel for the Petitioners has been unable to convince us to take a view different from the one taken by the High Court. 13. In view of the foregoing, this Petition is found to be without merit. The same is accordingly appeal is refused. ISLAMABAD. 17.1 .2 Hnythtiaq LCP \ Approved For porting'

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IN THE SUPREME COURT OF PAKISTAN (Appellant Jurisdiction) PRESENT: Mr. Justice Sardar Tariq Masood Mr. Justice Sajjad Ali Shah Civil Petition No. 720/2020 (Against the order dated 31.12.2019 passed by the Islamabad High Court in WP No. 2286 of 2019) Amjad Khan … Petitioner(s) Versus Muhammad Irshad (decd) thr. his LRs. …Respondent(s) For the Petitioner(s) : Syed Mastan Ali Zaidi, ASC Mr. Mehmood A. Sheikh, AOR For the Respondent(s) : Syed Zulfiqar Abbas Naqvi, ASC Syed Rifaqat Hussain Shah, AOR Date of Hearing : 28.09.2020 JUDGMENT Sajjad Ali Shah, J. The Petitioner seeks leave of this Court to appeal against the judgment of the Islamabad High Court, whereby the High Court, while allowing the constitution petition filed by the Respondents, reversed the order of the learned appellate court granting the Petitioner’s application under Order XVI Rule 1 of the Code of Civil Procedure 1908 (“CPC”) permitting him to produce three witnesses subject to the cost of Rs.10,000/-. Facts and Procedural History 2. Briefly, when the Petitioner stepped into the witness box, it transpired that list of witnesses as required under Order XVI Rule 1(1) CPC was not available on record. Consequently, an application was moved seeking permission to produce two marginal witnesses of the agreement, which was the subject-matter of the suit and was duly produced and exhibited by the Petitioner in his evidence, and one CP 720 of 2020 2 “arbitrator” of the said agreement. This application was based on the grounds that the initial application for producing list of witnesses filed by the Petitioner stood misplaced and that the Petitioner was out of country on account of death of his only son, which is why he could not properly pursue his case. The said application, after hearing, was dismissed by the trial court. The Petitioner then filed an appeal against the order of the trial court, which was allowed by the appellate court subject to cost of Rs.10,000/- on the grounds that the application provided good cause and that such witnesses, if examined, would not cause any surprise to the Respondents as the agreement whose marginal witnesses were sought to be produced is already on record. Against this order, the Respondents filed a constitution petition under Article 199 of the Constitution of Pakistan 1973, which was allowed by the High Court in light of the dictum laid down in the case of Muhammad Anwar Ali vs. Ilyas Begum (PLD 2013 SC 255) and the order of the appellate court was reversed. Submissions of the Parties 3. Learned counsel for the Petitioner contends that the High Court totally failed to consider that the appellate court in its order has discussed in detail the judgment of this Court in the case of Muhammad Anwar Ali (supra) and its effect and thereafter it concluded that the witnesses sought to be produced were marginal witnesses of the agreement and the arbitrator of the said agreement and the Respondents from the day one knew their role and it could not, by any stretch of imagination, be said to be a surprise for the Respondents. Per counsel once the appellate court has exercised its discretion by coming to the conclusion that the Petitioner has given good cause for filing of application for the production of evidence, then there was no room for the High Court to intervene while exercising the constitutional jurisdiction. It was lastly contended that the Supreme Court in the case of Muhammad Anwar Ali (supra) has not totally shut the doors of allowing such CP 720 of 2020 3 request at subsequent stage, therefore, the intervention after the learned appellate court found that the Petitioner has detailed good cause, was un-called for. 4. On the other hand, learned counsel for the Respondents while relying upon the judgment of this Court in the case of Muhammad Anwar Ali (supra) has vehemently contended that the delay in filing the application under Order XVI Rule 1 CPC clearly indicate that the Petitioner wanted to prolong the proceedings and the law does not allow the production of witnesses as such a belated stage. He further contended that at one breath the Petitioner contends that his application has been misplaced and on the other it is asserted that due to death of his only son, he could not concentrate on the proceedings and was abroad which is contradictory and could not be held good cause. Counsel has further relied on the judgment of this Court in the case of Haji Zarwar Khan vs. Haji Rehman Bangash (2016 SCMR 1976) in support of his stance. 5. However, on our query, the learned counsel for the Respondents had no option but to concede that the witnesses sought to be produced are marginal witnesses of the agreement and the arbitrator of the said agreement and that the agreement finds mention in the plaint, has been produced exhibited by the Petitioner herein in his evidence. We have further asked the counsel as to whether the judgment in the case of Muhammad Anwar Ali (supra), which is based on an amendment introduced by the Lahore High Court (“LHC”) in Order XVI Rule 1 CPC, applies to Federal Capital Area which has its own High Court, but he could not point out any such amendment undertaken or adopted by the Islamabad High Court. Opinion of the Court 6. We have heard the learned counsel for the parties and have gone through the record as well as the case law cited at bar. The question involved in the CP 720 of 2020 4 subject petition is as to whether the original text of Order XVI Rule 1 CPC places any embargo on production of a witness by a party whose name does not find mention in the list of witnesses or it pertains to only those witnesses whom a party to the proceeding wants to call through court either to give evidence or to produce documents. 7. Order XVI of the CPC regulates the summoning and attendance of witnesses in order to protect the interests of litigating parties. To this end, its Rule 1 puts an embargo on the right of litigants to summon witnesses in support of their claims. This embargo provides that litigating parties shall submit in court a list of witnesses to be called for attendance within seven days following the framing of issues, and that they shall not be permitted to call any witnesses outside of this list, except with the permission of the court. The purpose of this embargo is to ensure that the litigating parties may prepare their cases with a measure of certainty and know the kind of evidence that is going to be produced, so that they may make necessary preparation for rebuttal and cross-examination and are not taken by any surprise at a belated stage in the proceedings. In this regard, reference can be made to Muhammad Anwar Ali (supra). 8. Now the primary question to be decided in this case, as mentioned earlier, is as to whether this embargo extends to those witnesses who are not mentioned in the list of witnesses, but are voluntarily produced by the parties without invoking the summoning authority of the court. The answer to this question becomes clear when we examine the overarching scheme of Order XVI. Indeed, a close reading of this Order shows that all of its provisions directly or indirectly relate to summoning of witnesses through the process of court: i. Rule 1(1) mandates the litigants to file a list of witnesses “whom they propose to call either to give evidence or to produce documents” and places an embargo on the parties that disallows them from calling CP 720 of 2020 5 a witness whose name does not appear in that list except with the permission of the court upon disclosure of a good cause; ii. Rule 2 provides for the determination and deposit of the expenses of witnesses in the court; iii. Rule 3 prescribes that the deposited sum shall be paid to the summoned person at the time of service if possible; iv. Rule 4 provides for the procedure that may be triggered if the deposited sum is insufficient; v. Rule 5 states that every summons shall specify the time, place and purpose of the required attendance; vi. Rule 6 provides that a person summoned for producing documents may do so without personal attendance; vii. Rule 7 empowers the court to ask any person present in court to give evidence or to produce any document then and there in his possession or power; viii. Rule 8 provides for the mechanism through which summons under Order XVI may be served; ix. Rule 9 states that the service of summons should be effected in reasonable time; x. Rule 10, 11 and 12 provide for the procedure and the consequences that may follow such as arrest, attachment or sale of his property if a summoned witness fails to tender attendance in terms of the summons; xi. Rule 13 then makes the provisions of Order XXI applicable on such attachment and sale; xii. Rule 14 and 14A make provisions for another category of witnesses, and their expenses, that may be summoned by the court of its own motion; xiii. Rule 15 imposes a duty on the summoned witness to comply with the terms of the summons; xiv. Rule 16 empowers the court to ensure that the summoned witness remains in attendance and furnishes security, if required, for attendance at a later date in the suit; xv. Rule 17 provides that if the witness departs without lawful excuse, s/he may be dealt with in accordance with Rule 10-13; xvi. Rule 18 also empowers the court to release a person arrested under the preceding provisions upon furnishing reasonable bail or security for appearance at a later date; xvii. Rule 19 emphatically provides that summons shall not be issued to any person unless s/he resides within Pakistan; and xviii. Rule 20 gives the court the discretion to pass appropriate orders or judgment against a litigant that refuses to give evidence or produce any document when asked upon to do so by the court. 9. As is evident, none of these provisions mention the category of witnesses that the litigants produce on their own motion. To the contrary, these provisions repeatedly refer to summoning of witnesses and the related matters, meaning thereby that the scope of this Order does not go beyond summoning and CP 720 of 2020 6 attendance of witnesses through court. In this context, it stands to reason that the aforesaid embargo is also limited to the witnesses who are to be summoned through the court, and does not extend to the witnesses that the parties seek to produce voluntarily without invoking the summoning powers of the court. 10. This interpretation of the embargo also makes sense when considered in relation to its purpose. As discussed earlier, the embargo has been placed to protect litigating parties from a surprise at a belated stage in the proceeding. Voluntary production of witnesses by the parties however does not jeopardize this purpose, because such witnesses either support the claims made in the pleadings and/or the documents mentioned in the list annexed to the plaint under Order VII Rule 14 CPC or produced in court at the first hearing of the suit, i.e. after the framing of issues, under Order XIII Rule 1 CPC. Furthermore, the parties are not allowed to produce any document that has not been brought to the notice of the court in terms of these provisions, except with the permission of the court under Order XIII Rule 2 CPC. In this regard, reference can be made to Sher Baz Khan vs. The State (PLD 2003 SC 849) and Javed Rafat Kkan vs. Messrs. Shabbir Tiles and Ceramics LTD (PLD 2005 Karachi 1). This means that such witnesses can never depose about anything that the opposing party does not already know, either through the pleadings or through the annexed and submitted documents, foreclosing any chance of taking the latter by surprise. On the other hand, the witnesses which are summoned through the court to give evidence or to produce documents are not bound by the pleadings or the case set up by the parties. They can introduce new elements in the case which may shock the opposing party and adversely impact its case without giving sufficient notice. It is to guard against such surprises by summoned witnesses that the embargo of Order XVI Rule 1 CPC was introduced, not to prevent the parties from producing witnesses present in the court on the day the evidence of the parties is CP 720 of 2020 7 being recorded whose testimony may be material for a just resolution of the controversy. 11. The distinction between witnesses called through the process of the court and witnesses voluntarily produced by the parties was first examined by a larger bench of the LHC in the case of Ghulam Murtaza in the following terms: “The words “produce” and “call” are not at all synonymous. Word “produce” according to note 1 of the Oxford English Dictionary, Volume VIII, has been described to mean “to bring forward, bring forth or out; to bring into view, to present to view or notice; to offer for inspection or consideration, often used of bringing forward witnesses, as well as evidence or vouchers in a Court of law.” The words “witnesses in attendance” used in rule 4 of Order XVIII further clarify the position that witnesses who are brought by the patties in Court have to be examined by the Court. Now comparing the word “call” used in the term of summoning cannot equate with word produce and in attendance used in rules 2 and 4 of Order XVIII, C. P. C. Comparing the terms of art used in Order XVI and Order XVIII it is manifestly clear that the Legislature only placed fetters for the call of witnesses through Court for which a list has to be submitted within the prescribed period under the present rule. Had the Legislature intended to place similar restrictions on the production of witnesses by the parties without the aid of the Court, the word “produce” should have been inserted in between the words “proposed to call” and either to give evidence in rule 1 and in-between the word “to call” and witness used in sub-rule (2) of Order XVI, C.P.C. Having not done so, the intention of the Legislature is, therefore, absolutely clear that the parties are at liberty to bring witnesses along with them on the day when the case is fixed for evidence and the Court cannot refuse recording of their evidence according to rule 4 of the said Order.”1 12. The matter thereafter had come up before this Court in the case of Mst. Musarrat Bibi vs. Tariq Mahmood Tariq (1999 SCMR 799), wherein this Court approved the meaning given to the word “call” in Order XVI Rule 1 CPC by the LHC. It appears that this led the LHC to make amendment in Order XVI Rule 1 CPC by inserting the word “or produce” after the word “call” in its sub-rule 1 and sub-rule 2, requiring the litigant to provide a list of witnesses in respect of both kinds of witnesses.2 The judgment in the case of Muhammad Anwar Ali (supra), relied upon by the learned counsel for the Respondents, is based on the amended Order XVI Rule 1 1 Underlined by us to supply emphasis. 2 Lahore High Court Amdt. Added by Notification No. S.R.O. 330 Rules/XI-Y-26, dated 02.10.2001 (Notified in the Gazette of Punjab, Extra, Part III, dated 28.11.2001). CP 720 of 2020 8 CPC (though in the year 2018 the LHC has substituted Order XVI Rule 1 CPC to ensure that the list of witnesses contains the names of both kinds of witnesses),3 which is why it does not draw distinction between the witnesses produced by the parties themselves and the witnesses to be summoned through process of the court. Notwithstanding such factor, it still leaves open for the court to allow the production or summoning of the witnesses at a belated stage upon showing of a good cause. It appears that for want of proper assistance from the bar, neither this distinction nor the facts that the case of Muhammad Anwar Ali (supra) was based on an amendment introduced only by the LHC and was therefore not available for the other provinces or the Federal Capital Territory, were brought to the notice of the High Court. These aspects need to be properly considered, as this Court is supposed to provide not undue but a fair opportunity to the parties to prove their case. In the instance case, we have asked the learned counsel for the Respondents to demonstrate any prejudice or element of surprise which might be caused to the Respondents, but he could not show us any. He kept on insisting that the Petitioner should not be allowed to produce his witnesses due to the delay, which clearly reflects that the Respondents intend to steal a march upon the Petitioner on account of non-production of the witnesses as their non-production would be fatal to the Petitioner’s claim. 13. It should however be noted that the fact that the embargo contained in Order XVI Rule 1 CPC is inapplicable to witnesses that the parties voluntarily produce does not mean that the parties are at liberty to produce such witnesses at any time during the proceeding. As was held in Ghulam Murtaza vs. Muhammad Ilyas (PLD 1980 Lahore 495), a careful analysis of the language of Order XVI Rule 1 CPC 3 Lahore High Court Amdt. “Civil Procedure Code (Amendment of First Schedule) 2019” Added by Notification No. 237/Legis/XI-X-26, dated 15.08.2018 (It should be noted that these amendments have not come into force yet, as the same are subject to notification by the Lahore High Court, which is yet to be issued). CP 720 of 2020 9 read with Order XVIII Rule 2, Rule 4 and Rule 17 CPC shows that such witnesses can only be examined if they are “produced and are in attendance on the day for recording of evidence.”4 In this matter, we agree with the interpretation put forward by the LHC and approve the same insofar as the voluntary production of witnesses is concerned. 14. In the end, we would like to observe another aspect which was not brought to the notice of the High Court, namely, that it is by now a settled principle of law that the High Courts must not exercise their constitutional jurisdiction in order to interfere with the discretion exercised by lower courts unless the same suffers from jurisdictional, factual or legal errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with the law. If none of these errors is present, the High Courts must not exercise their constitutional jurisdiction to interfere with the findings of lower courts merely because it reached a different conclusion as to the controversy than the latter. In this regard, reference can be made to a collective reading of Mst. Mobin Fatima vs. Muhammad Yamin (PLD 2006 SC 214) and Nadira Shahzad vs. Mubashir Ahmad (1995 SCMR 1419). 15. The record shows that the learned appellate court allowed the application of the Petitioner by detailing the following reasons: “The Hon’ble Supreme Court in judgment PLD 2013 SC 255 has not stopped the trial courts from receiving the list of witnesses when good/sufficient cause is shown. The petitioner has mentioned in his application that he had to go to [sic] abroad due to death of his son. No doubt petitioner has moved the application for permission to produce the witnesses after lapse of many years, but law also prevent [sic] from non-suiting any party mere [sic] on technical ground. When the petitioner has moved application by mentioning good cause then he should have been given chance to prove his case by producing entire evidence. The learned trial court has knocked out the petitioner mere [sic] on delay in submission of the list of witnesses. The order of the learned court suffers irregularity, hence not sustainable. In view of the above discussion the 4 See the case of Ghulam Murtaza (supra), para 9. CP 720 of 2020 10 revision petition is accepted, and impugned order is set aside. Resultantly application filed by the petitioner u/o XVI rule 1 C.P.C. stands accepted subject to cost of Rs.10,000/- (ten thousands) which shall [sic] before the learned trial court. It is clarified that the petitioner himself shall produce the witnesses mentioned in the list at his own cost.” Examining the reasoning of the learned appellate court in light of the preceding discussion reveals that the court thoroughly perused the record and entered cogent reasons for accepting the application. In absence of any infirmity that would have warranted the exercise of constitutional jurisdiction of the High Court, we hold that no case for interference was made out in the discretion exercised by the learned appellate court. Even otherwise, the Petitioner was entitled to produce witnesses on his own motion as of right on the day of recording of evidence even if no application had been made. As such, we direct the trial court to allow the production of two witnesses to the agreement and the arbitrator in terms of the order of the learned appellate court, and the Petitioner shall produce all the witnesses together for recording of the evidence on the same day. 16. The foregoing are the reasons for the Short Order of even date whereby this petition was converted into appeal and allowed. That Order reads as follows: “For reasons to be recorded later, this petition is converted into appeal and allowed. Learned trial Court is directed to decide the suit within three months.” Judge Islamabad, the 28th September, 2020 Approved for reporting Asad Ullah Khan, LC. Judge

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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.722-P of 2021 (Against the order dated 05.10.2021 passed by the Peshawar High Court Peshawar in W.P. No.2622-P/2021) Waseem Zeb Khan …..Petitioner(s) Versus The Chairman, National Accountability Bureau, NAB Headquarters, Islamabad and others …Respondent(s) For the Petitioner(s): Barrister Waqar Ali Khan, ASC For the NAB: Mr. Akbtar Tarar, Addl. P.G. Mr. Nasir Mehmood Mughal, Special Prosecutor with Ansar Butt, I.O. Date of Hearing 25.01.2022. ORDER Qazi Muhammad Amin Ahmed, J.- Veiled behind a fake online company fraudulently shown to have been registered with the Security & Exchange Commission of Pakistan with the name and style of Space Construction Pvt. Ltd., alongside the co-accused, the petitioner is part of the scam that lured people to invest against monthly profit at the rate of 21% of the deposited amount. 1700 claimants parting with an amount of Rs.1.7 billion fell in the trap before the hoax was detected, pursuant whereto, the petitioner was arrested on the 20th of May, 2021. The mastermind behind the scam was Muhammad Taimoor who established online deceit through fake identity of Rabia Batool; the petitioner joined him in September 2019 and projected himself to the unsuspecting public as Senior Director Criminal Petition No.722-P of 2021 of the Company; at his tier, he operated alongside Riaz Khattak and Iftikhar Khattak, absconders till date, through an office set up at Peshawar. As the investigation progressed, the affectees, still pouring in to join the process, recorded their statements wherein they unambiguously blamed the petitioner for having received the sums through the trap. Colossal amounts were siphoned off beyond investigative reach through conversion into crypto currency/bit coins. 2. Learned counsel for the petitioner contends that petitioner is himself victim of the scam as he initially made a deposit in the hope to earn profits and, thus, joined the company without any mens rea to defraud the public at large and as such is not beneficiary of the fraud; it is next argued that despite lapse of considerable time, the NAB has not yet filed the reference and, thus, his continuous detention is serving no useful purpose. 3. Heard. Record perused. 4. With the assistance of learned Law Officer, we have gone through the record to find a long list of victims deprived of huge amounts, each blaming the petitioner for soliciting deposit in lieu of regular lucrative profit, a promise that soon turned out as farce; the affectees are from different regions and backgrounds and, thus, cannot be possibly stage-managed to cook up a false case that too without any earthly reason. Investigative details confirm establishment of an office at Peshawar as is unanimously pointed out by the witnesses in their statements before the Investigating Officer. A small amount statedly deposited by the petitioner to project himself as an innocent victim of the scam without any tangible proof, in the face of formidable evidence, does not provide any space to hypothesize his claim of innocence. In this backdrop, refusal by the High Court to release the petitioner on bail in exercise of its equitable Constitutional jurisdiction is not open to any legitimate exception. Petition fails. Leave declined. We are dismayed by Investigating Officer’s failure to recover the pilferage and locate assets accumulated through the scam; his Criminal Petition No.722-P of 2021 failure to arrest the co-accused and file reference in time are no less disquieting either. Judge Judge Islamabad, the 25th January, 2022 Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE FAISAL ARAB MR. JUSTICE SAJJAD ALI SHAH CIVIL PETITION NOs. 731-K & 732-K OF 2018 (On appeal against the judgment dated11.6.2018 passed by the High Court of Sindh,44 Circuit Court, Hyderabad in CPs No.D- 644 &1093 of 2018) Muhammad Umar Panhwar, etc. (In both cases) … Petitioners VERSUS Province of Sindh and others (In both cases) … Respondents For the Petitioners: Mr. Faroooq H. Naek Sr. ASC (in both cases) For Respondent No.5: Mr. Khalid Javed ASC, Mr. Ghulam Rasool Mangi, AOR For Province of Sindh: Mr. Sibtain Mehmood, AAG a/w Najab Bhatti, Advocate. For ECP: Mr. Khalid Haider Shah, Secy. Local Govt. Abdullah, Law Officer. Date of Hearing: 07.09.2018 JUDGMENT MUSHIR ALAM, J.- Present Petitioner-Muhammad Umar Panhwar, Member of Municipal Committee, Dadu has impugned common order dated 11.6.2018 passed by learned High Court of Sindh, Circuit Court, Hyderabad in CPs No.D-644 and 1093 of 2018 whereby through Notification dated 7.3.2018 earlier Notification recalling dated 5.3.2018 entrusting function of Chairman M.C. Dadu to Ahmed Nawaz Solangi vice Chairman (Respondent No.5 herein) was kept in abeyance and Notification through another dated 12.4.2018 assigned the functions of the Chairman, Municipal Committee, Dadu to respondent No.5 Muhammad Umar Panhwar were set aside and directed that Ahmad Nawaz, Vice Chairman is entitled to perform function and discharge the power of the Chairman, Municipal Committee in terms of sub-section (2) section 80 of the Sindh Local Government Act, 2013. CIVIL PETITION NOs. 731-K & 732-K OF 2018 2 2. Brief facts in nutshell appear to be that Gul Hassan Qambrani, one of the Members of the Municipal Committee, Dadu was elected as a Chairman Municipal Committee, Dadu unfortunately Mr. Qambrani passed away on 7.2.2017. It appears to be that pursuant to the Notification dated 5.3.2018 in purported exercise of power under sub-section (2) of section 80 of the Act, 2013 functions were assigned to the Vice Chairman of the Municipal Committee, Dadu till election to the seat of the Chairman of the Municipal Committee. It seems that in a quick succession after two days on 7.3.2018 another Notification was issued by the Secretary to the Government of Sindh while the Notification noted above was ordered to be kept in abeyance. 3. Again on 12.4.2018 with the approval of the competent Authority, the Chief Minister, Sindh assigned the function of the Chairman Municipal Committee, Dadu to Muhammad Usman Kanwar till the election of the Chairman, who it was claimed has assumed charge forcibly from the Vice Chairman appointed earlier. 4. Mr. Khalid Javed, learned counsel appearing for the respondent No.5 heavily relying on sub-section (2) of section 80 of the Act, 2013 urged that the petitioner who is the Vice Chairman is mandated to exercise of powers and functions of the Mayor or as the case may be the Chairman of the Municipal Committee for the ease of convenience sub-section (2) of section 80 of the Act, 2013 is reproduced as follows: “When the Mayor or Chairman by reason of absence from Pakistan or any other cause, is unable to exercise his powers and perform his functions, the Deputy Mayor or, as the case may be, Vice Chairman, shall CIVIL PETITION NOs. 731-K & 732-K OF 2018 3 exercise powers and perform functions of the Mayor or, as the case may be, Chairman. Provided that in the absence of Mayor, Deputy Mayor, Chairman or Vice Chairman, the Government may by Notification entrust the duties of the Mayor, Deputy Mayor, Chairman or Vice Chairman as the case may be to some other member.” 5. It was further urged that since the vacancy in the office has occurred which is to be filled in by election to be held by the Election Commission for Pakistan as provided under section 24 of the Act, 2013. Section 24 reads as follows: “Casual vacancy.- (1) If the office of a Mayor, Deputy Mayor, Chairman or a Vice Chairman or member of the Council, other than the office of Chairman or Vice Chairman or member of a Union Council or Union Committee, for any reason, falls vacant during the terms of office of a Council, the new Mayor, Deputy Mayor, Chairman or Vice Chairman or the member shall be elected or nominated, as the case may be in the prescribed manner within thirty days from the date when such vacancy is notified and he or she shall, subject to this Act, hold office for the remaining term of the Council. (2) If the office of a Chairman of a Union Council or Union Committee or its members or member of ward for any reason, falls vacant during the term of office of the Council, the new Chairman or Vice Chairman of the Union Council or its member or a member of a ward shall be elected in the prescribed manner within sixty days from the date such vacancy is notified and he or she shall, subject to this Act, hold office for the remaining term of the Council. (3) If the vacancy in the office of a member of a Council occurs within six months of the expiry of the term of a Council, the vacancy shall not be filled.” 6. Mr. Farooq H. Nack, learned Sr. ASC appearing for the petitioners and representative of Election Commission for Pakistan are in attendance were inquired as to why the election of the vote to which the Chairman belongs to has not been held yet and the vacancy of the CIVIL PETITION NOs. 731-K & 732-K OF 2018 4 Chairman has not been filled up. It was stated that though the Secretary Local Government, Sindh had intimated about the demise of the Chairman but on account of over engagement in the election of National and provincial assembly, this matter escaped the attention. We thought the explanation offered is not satisfactory, yet instead of entering into such controversy as to the cause of delay. 7. We have heard the learned counsel for the parties as well as AAG, Sindh with their able assistance and perused the record. 8. Mr. Farooq H. Naek, learned Sr. ASC for the petitioners contends that section 24 of the Act, 2013 does not cater to the eventuality that is occurred in the instant case, according to him it is not a causal vacancy as the title section shows it is in fact absence of the office of the Chairman, Municipal Committee on account of death of the Chairman. He however, concedes that the vacancy that has occurred on account of a death of the Chairman in any case is to be filled up bye- election. 9. Mr. Khalid Javed, learned ASC for the respondent No.5 contended that the vacancy of the Chairman cannot be filled up unless the election to the vote to which the Chairman himself belongs is held and filled up, only then the quorum to elect the Chairman, Municipal Committee would be available, therefore, according to him first the election of the vote is to be held, followed by the election of the Chairman which argument was controverted by Mr. Farooq H. Naek, learned Sr. ASC. 10. Mr. Farooq H. Naek, learned Sr.ASC has drawn our attention to Article-67 of the Constitution which postulates that, notwithstanding any vacancy in National or Provincial Assembly, the proceedings continue and cannot be called in question and so also similar provision CIVIL PETITION NOs. 731-K & 732-K OF 2018 5 is contained in section 83 (9) of the Sindh Local Government Act, 2013 to urge that no proceeding of a counsel shall be invalid by reasons only of the existence of any vacancy in or defect in the Constitution of the counsel. Similar provision is contained in section 130 of the Election Act, 2017. He has also relied upon the case of Al. Jehad Trust and another versus Federation of Pakistan and others (PLD 2011 Supreme Court 811). 11. Having heard the arguments and perused the record. It may be observed that the power of a Chairman can in his absence from Pakistan or for any other cause that preclude him to exercise his powers of functions in such eventuality the Deputy Mayor or as the case may be Vice Chairman could exercise such powers. Such powers as delegated under mandate of the provision of sub-section (2) of section 80 of the Act, 2013 reproduced above is by operation of law for which no Notification is required to be issued by the Government. However, that is elapsed in the Act, 2013 which does not cater for a situation when a vacancy has fallen vacant on account of a demise of the Mayor, Chairman or a Vice Chairman or Member of the Union Council or Union Committee. Law only mandates if such office has fallen vacant in terms of section 24 of the Act, 2013, the new Mayor, Deputy Mayor, Chairman or a Vice Chairman, or member of the Union Council shall be elected or nominated, as the case may be in the prescribed manner within thirty days when such vacancy is notified. 12. Learned AAG, Sindh and so also Mr. Farooq H. Naek, learned Sr. ASC for the petitioners candidly conceded that no manner is provided for nomination in case of a vacancy resulting out of the demise persons noted above. Resort to sub-section (2) of section 80 of the Act, 2013, under the circumstances of the case, cannot be taken. Only possibility open to court here is to direct the Election Commissioner for Pakistan to hold free and fair election to the office of the Chairman and CIVIL PETITION NOs. 731-K & 732-K OF 2018 6 at the same time to take measures to hold the election to the seat of Chairman Municipal Committee, Dadu, that has fallen vacant within thirty days for which process has already commenced by Mr. Justice (R) Sardar Muhammad Raza Khan, the Chief Election Commissioner for Pakistan, District Returning Officer, Returning Officer and Assistant Returning Officer have already been appointed on 6th September, 2018 as per a letter placed on record. Secretary Local Government in attendance assures that in the meantime, the Election Commissioner may nominate any Member of the Municipal Committee to conduct day- to-day affairs till the election of the Chairman, Municipal Committee, Dadu. 13. Thus for the foregoing reasons, both these petitions are converted into appeal and allowed in the terms noted above. JUDGE JUDGE JUDGE Karachi, the 7th of September, 2018 arshed Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN Civil Petition No.733 of 2018 (Against the judgment dated 17.01.2018 passed by the Peshawar High Court, Peshawar in Writ Petition No. 4783-P of 2016). Directorate General Emergency Rescue Service 1122 Khyber Pakhtunkhwa, Peshawar. …Petitioner(s) versus Nizakat Ullah. …Respondent(s) For the petitioner(s): Mr. Sikandar Rashid, ASC. Syed Rafaqat Hussain Shah, AOR. For the respondent(s): N.R. Date of hearing: 22.02.2019. O R D E R IJAZ UL AHSAN, J. - The petitioner seeks leave to appeal against a judgment of the Peshawar High Court, Peshawar, dated 17.01.2018. Through the impugned judgment, while allowing a constitutional petition filed by the Respondent, his dismissal from service was set aside and he was directed to be reinstated with all back benefits. 2. The Respondent was appointed as an Emergency Medical Technician on 15.03.2010 in Khyber Pakhtunkhwa Emergency Rescue Services 1122. On 31.03.2015, he was suspended from service and an inquiry was initiated against him. He was issued a show cause notice on 29.04.2014 Civil Petition No.733 of 2018 2 leveling certain allegations against him including misbehavior with higher officials and sending them abusive SMS messages. The Respondent denied the allegations whereafter considering his response unsatisfactory, he was dismissed from service vide order dated 01.06.2015. His departmental appeal was decided, after a direction was issued by the High Court. The said appeal was dismissed by the department, vide order dated 16.06.2016. 4. The Respondent challenged his dismissal from service through a constitutional petition which was allowed in the aforenoted terms. Hence, this petition for leave to appeal. 5. The learned counsel for the petitioner submits that there was sufficient material on record to establish misconduct on the part of the Respondent. He maintains that the Respondent was a habitual offender and even previously he had been dismissed from service. However, he was restored under the orders of the High Court. He further submits that even after his reinstatement into service, his attitude did not improve and he continued to misbehave and threaten his senior officers in consequence of which he was suspended and after a transparent inquiry, from which the Respondent intentionally absented himself, he was dismissed from service. Civil Petition No.733 of 2018 3 6. We have heard the learned counsel for the petitioner at some length and carefully gone through the record. The terms and conditions of service of the Khyber Pakhtunkhwa Emergency Rescue Services are regulated by Khyber Pakhtunkhwa Emergency Rescue Services Regulations, 2015 and the matter of termination from service is dealt with by clause 43 of the same. Clause 45(2) of the Regulations provides that no employee shall be dismissed from service by an authority subordinate to that by which he was appointed. Further, Section 50 of the Regulations sets out acts/omissions that constitute misconduct on the part of the employees. 7. We find that the allegation against the Respondent was that he had sent abusive and threatening SMS messages to Director (Operations), DG (Operations) and the Administrative Officer and had generally indulged in disorderly behaviour. It was stated that he had violated the undertaking which he had given prior to joining Rescue Services as well as the West Pakistan Essential Services (Maintenance) Act, 1958. It was alleged that the Respondent had quarreled with his senior officers and thereafter had sent them threatening SMS messages. However, unfortunately neither any material by way of evidence was placed on record nor was the Respondent provided an opportunity to cross- Civil Petition No.733 of 2018 4 examine any witness that the petitioner may have produced. Further, there was no evidence that the Respondent had misbehaved with any body or refused to perform his duty as Emergency Medical Technician. So much so that no evidence even of obnoxious SMS messages allegedly sent to his senior officers was placed on record. 8. Where an employee is to be removed from service, which action obviously carries a stigma with it, he is entitled to due process which includes fair opportunity to defend himself, cross-examine the witnesses and produce evidence in his defence. Further, he must be confronted with the material on the basis of which he has been issued show cause notice. We find that the Respondent was deprived of his due process rights. He was not confronted with the material on the basis of which the show cause notice had been issued to him and he was not permitted to cross-examine the witnesses who were produced by the petitioner. 9. Even otherwise, the process followed by the petitioner was sketchy, one sided, non transparent and not supported even by the Regulations and the law. We therefore find that the High Court was justified in passing the impugned judgment and recorded valid and cogent reasons for doing so. The learned counsel for the petitioner has not been able to persuade us to hold otherwise or to interfere in Civil Petition No.733 of 2018 5 the impugned judgment, which is based upon the record and correct application and interpretation of law on the subject. 10. For reasons recoded above, we do not find any merit in this petition. The same is accordingly dismissed. Leave to appeal is refused. JUDGE JUDGE ISLAMABAD. 22.02.2019 Not Approved For Reporting ZR/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed Civil Petition No.756-L of 2013 [On appeal against the order dated 25.04.2013, passed by the Lahore High Court, Lahore, in W.P.No.9513 of 2013] Khalid Pervaiz Gill Petitioner(s) VERSUS Saifullah Gill & others Respondent(s) For the Petitioner(s) : Mr. M. Ahsan Bhoon, ASC For Respondent No.1 : Sheikh Muhammad Suleman, ASC Mr. Arshad Ali Ch., AOR Date of Hearing : 10.05.2013 ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ.—This petition has been filed for leave to appeal against the impugned order dated 25.04.2013. 2. Precisely stating the facts of the case are that the petitioner being a candidate in the forthcoming elections from PP-61, Faisalabad, objected to the candidature of the respondent from the same constituency before the Returning Officer (RO) contending that he being a candidate for the seat of Nazim of Union Council 134 (held in the year 2005) produced a fake and forged matriculation certificate showing his date of birth to C.P.No.756-L of 2013 - 2 - 02.04.1979 instead of 02.08.1981, on this a case was registered against him thus he is not entitled to contest the election, as he did not fulfil the conditions laid down in Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973. The objection was contested by the respondent. The RO on having taken into consideration the objection observed “the candidate has not categorically denied in his written reply that he has not mentioned his date of birth in his matriculation certificate as 02.04.1979 while filing his nomination papers for contesting the election of Nazim Union Council No.134. A copy of the certificate has been appended with the objection petition showing that birth entry has forged by the candidate as 02.04.1979 to make himself eligible to contest the election for the seat of Nazim Union Council was a person who has dishonestly forged an entry and made himself eligible to contest the particular election cannot be terms as Sadiq and Amin so his nomination paper is hit by provision of Article 62 of the Constitution”. Accordingly his nomination papers were rejected. 3. At this juncture, it would not be out of context to mention that according to Section 152 of the Punjab Local Government Ordinance, 2001, a person who is at least 25 years of age besides fulfilling other conditions was qualified to contest the election. It seems that the respondent was not of 25 years of age as his date of birth has been shown to be 02.08.1981 in the C.P.No.756-L of 2013 - 3 - matriculation certificate but somehow he managed to produce a matriculation certificate with the date of birth as 02.04.1979. 4. The respondent preferred an appeal before the Election Tribunal, which has been allowed on 13.04.2013, against which the petitioner preferred a Constitution Petition before a larger Bench of the Lahore High Court, Lahore, which has not been disposed of on merits for the reasons mentioned in the impugned order, para 2 therefrom is reproduced herein below:- “2. We have heard the learned counsel for the parties. We have already held in other matters that the cases of objectors in which similar questions have been agitated, need to be disposed of leaving the petitioner to agitate the matter before the Election Commission of Pakistan under the provisions of Representation of People Act, 1976 or other appropriate proceedings should the Respondent be returned. In other petitions filed by objectors the following order has been passed. “We have been informed by the Election Commission of Pakistan (ECP) that final list of validly nominated contesting candidates has been prepared, which would be followed by printing of ballot papers, which contains the names of validly nominated contesting candidates alongwith their election symbols. Any interference in this process including, but not limited to addition or omission of names of candidates is likely to affect the election schedule framed by the ECP. Further, the petitioner has a remedy to approach the ECP under Representation of People Act, 1976 or avail his remedy under the law after the elections, if so advised. Therefore, in the C.P.No.756-L of 2013 - 4 - interest of justice, equity, fair play and in order to ensure that the elections are held as per Schedule, we are not inclined to interfere in the impugned order dated 16.04.2013. Consequently, this petition is disposed of”. 5. Learned counsel for the petitioner contended that in view of the facts and circumstances of the case, the learned High Court may have not refused to exercise jurisdiction under Article 199 of the Constitution, as there is a conclusive findings against the respondent that he has forged his date of birth in the matriculation certificate in order to make himself eligible to contest the election of Union Council and had shown his date of birth to be 02.04.1979 instead of 02.08.1981, as it was so held by the Election Tribunal constituted under the Punjab Local Government Ordinance, 2001, vide order dated 22.05.2007 copy of which is also available on record, passed in Election Petition No.29-E of 2005. He further stated that against these findings, a Writ Petition No.6266/2007 was presented before the High Court, which was subsequently withdrawn on 04.09.2007. It would be appropriate to reproduce herein below the order of withdrawal:- “Learned counsel for the petitioners under instructions, prayed for withdrawal of instant petition. Dismissed as withdrawn”. 6. He further contended that the respondent had also suffered criminal proceedings on account of committing forgery but ultimately in terms of compromise he was acquitted of the C.P.No.756-L of 2013 - 5 - charge, however, conclusive findings of fact as mentioned above are operating against him that he had tampered the age in the matriculation certificate in order to make himself qualified to contest the election of local bodies in terms of Section 52 of the Local Government Ordinance, 2001, therefore, according to him and in view of the said declaration by a Court of law/Tribunal after recording evidence, the respondent’s case is fully covered under Article 62 (1)(f) of the Constitution, therefore, he may be disqualified. 7. The learned counsel for the Caveat vehemently opposed the contention put forward on behalf of the petitioner and stated that this Court from time to time had observed in a number of cases that date of birth mentioned in a matriculation certificate cannot be considered conclusive against a candidate. Reliance in this behalf has been placed on the case of Waqas Akram v. Dr. Muhammad Tahirul Qadri & others (2003 SCMR 145) as well as on the case of Muhammad Safdar Abbasi v. Aamir Yar Malik & 3 others (2004 SCMR 1602). He further stated that as now the ballot papers have been printed, therefore, the respondent and petitioner both be allowed to contest the election, as according to him no forgery has been established against him before the Election Tribunal to the effect that he has tampered with any document or produced a fake or bogus document. C.P.No.756-L of 2013 - 6 - 8. We have heard the learned counsel for the parties and have gone through the documents produced before us including the judgment recorded by the Election Tribunal as far back as on 22.05.2007 therein he was found not qualified to contest the election on the basis that the matriculation certificate relied upon by him was disowned by the BISE. Such findings have become conclusive as though he filed a Constitution Petition but without getting such findings set aside withdrew the same, therefore, a case for leave to appeal is made out in order to examine as to whether the respondent is qualified to contest the election in terms of Article 62 (1) (f) of the Constitution. 9. It is to be noted on having concluding that a case has been made out for grant of leave on the basis of earlier findings we have passed an order on 09.05.2013 in Civil Petition No.636 of 2013 in the case of Miss Kalsum Khaliq Advocate, Islamabad v. The Election Commission of Pakistan, etc. pertaining to the interpretation of Article 63 (1) (o) of the Constitution of Islamic Republic of Pakistan, 1973, the candidate against whom evidence/finding was available on record was restrained from contesting the election of the provincial Assembly, therefore, following the same precedent and the observation made therein in this case too we direct that the respondent is restrained from contesting the election from constituency No. PP-61 Faisalabad. C.P.No.756-L of 2013 - 7 - The case is ordered to be fixed for a date in office after effecting service upon the respondents. CJ. Islamabad J. 10.05.2013 *Hashmi* J.

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IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Javed Iqbal Mr. Justice Sardar Muhammad Raza Khan Mr. Justice Khalil-ur-Rehman Ramday Mr. Justice Mian Shakirullah Jan Mr. Justice Tassaduq Hussain Jillani Mr. Justice Nasir-ul-Mulk Mr. Justice Raja Fayyaz Ahmed Mr. Justice Ch. Ijaz Ahmed Mr. Justice Muhammad Sair Ali Mr. Justice Mahmood Akhtar Shahid Siddiqui Mr. Justice Jawwad S. Khawaja Mr. Justice Anwar Zaheer Jamali Mr. Justice Khilji Arif Hussain Mr. Justice Rahmat Hussain Jafferi Mr. Justice Tariq Parvez Mr. Justice Ghulam Rabbani CONSTITUTION PETITION NOS. 76 TO 80 OF 2007 & 59/2009, AND CIVIL APPEAL NO. 1094 OF 2009 (On appeal from the order dated 15.1.2009 passed by High Court of Sindh at Karachi in Const.P.No.355 of 2008) AND HRC NOS.14328-P TO 14331-P & 15082-P OF 2009 Dr. Mobashir Hassan (Const.P.76/07) Roedad Khan (Const. P.77/07) Qazi Hussain Ahmad (Const.P.78/07) Muhammad Shahbaz Sharif (Const.P.79/07) Muhammad Tariq Asad (Const.P.80/07) Syed Feroz Shah Gillani (Const.P.59/09) Fazal Ahmad Jat (C.A.1094/09) Shaukat Ali (H.R.C.14328-P/09) Doraiz (H.R.C.14329-P/09) Zulqarnain Shahzad (H.R.C.14330-P/09) Abid Hussain (H.R.C.14331-P/09) Manzoor Ahmad (H.R.C.15082-P/09) … … … Petitioners. Const.P.76/2007, etc. 2 Versus Federation of Pakistan, etc. … … Respondents. For the petitioners : Mr. Abdul Hafeez Pirzada, Sr. ASC. Mr. Salman Akram Raja, ASC. Mr. Ejaz Muhammad Khan, AOR. Assisted by: Abdul Mujeeb Pirzada, Sr.ASC Mr. M.Afzal Siddiqui, ASC Mian Gul Hassan Aurangzeb, ASC Mr. Sikandar Bashir Mohmand, ASC Barrister Feroze Jamal Shah, Adv. Mr. Hameed Ahmeed, Adv. Mr. Mustafa Aftab Sherpao, Adv. Mr. Sameer Khosa, Adv. Mr. Umar Akram Chaudhry, Adv. Malik Ghulam Sabir, Adv. (in Const. P. 76/2007) Mr. Muhammad Ikram Ch. ASC. Mr. G. N. Gohar, AOR. (in Const. P. 77/2007) Dr. Farooq Hassan, Sr.ASC Mr. Hashmat Ali Habib, ASC Ch. Muhammad Akram, AOR (in Const.P.78/07) Mr. Ashtar Ausaf Ali, ASC (In Const.P.79/07) Mr. Tariq Asad, ASC (in person) (In Const.P.80/07) Mr. A.K. Dogar, Sr. ASC (In Const.P.59/09) Mr. Shahid Orakzai (in person) (In CMA 4842/09) Raja Muhammad Ibrahim Satti, Sr. ASC (in CA.1094/2009) NEMO (in HR.Cases) For the Respondents: For M/o Law : Mr. Kamal Azfar, Sr. ASC. assisted by Mr. K.K. Agha, ASC. Raja Abdul Ghafoor, AOR. (in Const.P.76-77/07) Const.P.76/2007, etc. 3 Raja Abdul Ghafoor, AOR. (in Const.P.78-80/07 & 59/09) For the NAB : Dr. Danishwar Malik, PG. Mr. Abdul Baseer Qureshi, Addl: PG Dr. Asghar Rana, ADPG, Ch. Akhtar Ali, AOR. Mr. Naveed Ahsan, Chairman NAB On Court Notice : Mr. Shah Khawar, Acting Attorney General for Pakistan. Assisted by: Agha Tariq Mehmood Khan, DAG. Mr. Dil Muhammad Alizai, DAG. Raja Aleem Abbassi, DAG. For Govt. of Balochistan : Dr. Salahuddin Mengal, AG. For Govt. of NWFP. : Mr. Zia-ur-Rehman, A.G. Mr. Zahid Yousaf, Addl. A.G. Mr. Naveed Akhtar, A.A.G. For Govt. of the Punjab : Mr. M. Hanif Khattana, Addl: AG. Ch. Khadim Hussain Qaiser, Addl: AG. For Govt. of Sindh : Mr. Yousaf Leghari, AG. On Court’s Call: : Malik Muhammad Qayyum, Sr. ASC Former Attorney General for Pakistan Mr. Justice (R) M. Riaz Kiani Secretary Law & Justice. Dr. Riaz Mehmood, Sr. Joint Secretary. Syed Nasir Ali Shah, Solicitor General. Mr. M. Salman Faruqui, Secretary General to the President. Amicus Curiae : Mian Allah Nawaz, Sr. ASC. Mr. Shaiq Usmani Sr. ASC. Mr. M. Sardar Khan, Sr. ASC. Assisted By Mr. Idrees Ashraf, Adv. Const.P.76/2007, etc. 4 Dates of hearing : 07th -10th & 14th - 16th December, 2009. JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – Constitution Petition Nos. 76 to 80 of 2007 and 59 of 2009 have been filed, challenging the constitutionality of the National Reconciliation Ordinance, 2007 [hereinafter referred to as “the NRO, 2007”], whereas Civil Appeal No. 1094 of 2009 (by leave of the Court), has been filed against the order dated 15th January 2009, passed by High Court of Sindh in Constitution Petition No. 355 of 2008, whereby the benefit of the NRO, 2007 has been declined to the appellant. Similarly, in Human Right cases, the applicants have prayed that the benefit of the NRO, 2007 may also be extended to them. 2. Brief facts, leading to filing of the listed petitions are that on 5th October 2007, the President of Pakistan [hereinafter referred to as “President”], while exercising his power under Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973 [herein after referred to as “the Constitution”], promulgated the NRO, 2007 vide Ordinance No.LX of 2007. 3. The above Ordinance came under challenge, immediately after its promulgation, before this Court, by Const.P.76/2007, etc. 5 invoking jurisdiction under Article 184(3) of the Constitution, in the listed Constitution Petitions, when, on 12th October 2007, after hearing the learned counsel for the petitioners at a considerable length and examining the case law, the Court passed an order, which is reproduced hereinbelow:- “These petitions have been filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 [herein after referred to as “the Constitution”] challenging the National Reconciliation Ordinance, 2007 (No. LX of 2007) [herein after referred to as “the impugned Ordinance”]. 2. Mr. Salman Akram Raja, learned counsel appearing on behalf of petitioner in Constitution Petition No. 76 of 2007 argued that:- a) Section 7 of the impugned Ordinance being self-executory in nature amounts to legislative judgment, which is impermissible intrusion into the exercise of judicial powers of the State and thus falls foul of Article 175 of the Constitution which envisages separation and independence of the judiciary from other organs of the State. b) Legislative judgment cannot be enacted by the Parliament. [ Smt. Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299)]. c) By promulgating Section 7 of the impugned Ordinance, Article 63(1)(h) and 63(1)(l) of the Constitution have been made ineffective, as regards chosen category of people, therefore, it is ultra vires the Constitution as it amounts to defeat the constitutional mandates. d) Impugned Ordinance exhorts about or indemnifies a particular class of people i.e. public office holders from proceedings, actions and orders passed by the competent authorities, whereas no such powers are available to the Parliament or, for that Const.P.76/2007, etc. 6 matter, to the President of Pakistan under Federal or Concurrent Legislative List. Further; the President is empowered only to pardon an accused person, under Article 45 of the Constitution, after passing of sentence by a Court of law, whereas by means of impugned Ordinance, the President has been empowered to indemnify or pardon an accused, against whom proceedings are pending before Investigating Agency or a Court of law or in appeal by giving a blanket cover. e) The impugned Ordinance violates the provisions of Article 25 of the Constitution because it is not based on intelligible differentia, relatable to lawful objects, therefore, deserves to be struck down. f) The impugned Ordinance is against the public policy because it also provides protection against future action in terms of its Section 7 and it had also rendered Articles 62 and 63 of the Constitution ineffective. g) Sub-sections (2) and (3) of Section 494 of Cr.P.C. added by means of impugned Ordinance are contrary to provisions of Sub- section (1) of Section 494 of Cr.P.C. where it has been provided that cases can only be withdrawn with the consent of the Court, whereas, in newly added Sub-Sections, powers of the “Court” have been conferred upon the Review Boards of the Executive Bodies, therefore, these Sub-sections are also contrary to Article 175 of the Constitution. and No criteria has been laid down as to why the cases falling between the 1st day of January 1986 to 12th day of October 1999 have been covered under these provisions, inasmuch as definition of political victimization has not been provided in these Sub-sections, as a result whereof it has been left at the subjective consideration of Review Board/ Executive Bodies to determine the same. Thus such provisions cannot exist in any manner. Const.P.76/2007, etc. 7 h) The impugned Ordinance has been promulgated in colorable exercise of Legislative powers and its various provisions have created discrimination among ordinary and classified accused, therefore, all these provisions tantamount to malice in law. i) The provisions of impugned Ordinance are so overbroad that these have provided blanket cover to all the holders of public offices, including chosen representatives and ordinary employees, therefore, the object of national reconciliation cannot be achieved by allowing it to exist. j) The provisions of Sections 4 and 5 of the impugned Ordinance are highly discriminatory in nature, therefore, are liable to be struck down. k) Section 6 of the impugned Ordinance is contrary to the basic principles relating to annulment of judgments, even if passed in absentia, in accordance with existing law, according to which unless the basis for the judgment, in favour of a party, is not removed, it could not affect the rights of the parties, in whose favour the same was passed but when the Legislature promulgated the impugned Ordinance, in order to remove the basis on which the judgment was founded, such judgment shall have no bearing on the cases. [Facto Belarus Tractor Ltd. v. Government of Pakistan (PLD 2005 SC 605)]. Hence, provisions of the impugned Ordinance as a whole are against the concept of equality of Islamic Injunction, provided under Article 2A of the Constitution, therefore, on this score as well, deserves to be struck down being ultra vires the Constitution. 3. Mr. Muhammad Ikram Chaudhry, learned Sr. ASC for petitioner in Constitution Petition No. 77 of 2007, while adopting the above arguments, added that :- i) The impugned Ordinance is purpose specific and period specific, therefore, violates Article 25 of the Constitution. Const.P.76/2007, etc. 8 4. Dr. Farooq Hassan, Sr. ASC appearing in Constitution Petition No. 78 of 2007 on behalf of petitioner, while adopting the arguments raised by Mr. Salman Akram Raja, ASC contended that:- i) The impugned Ordinance is contradictory to and violative of the United Nation’s Convention Against Corruption, enacted in 2005 and ratified by Pakistan on 31st of August 2007. ii) Under the Constitution, no indemnity or amnesty can at all be given to any one, except granting pardon in terms of Article 45 of the Constitution. iii) Sections 2, 4, 5 and 6 of the impugned Ordinance are violative of the doctrine of trichotomy of powers. iv) The impugned Ordinance has in fact changed the basic structure of the Constitution. v) The impugned Ordinance has also violated the principles of political justice and fundamental rights because it allows plundering of national wealth and to get away with it. More so, it tried to condone dishonesty of magnitude which is unconscientious and shocking to the conscience of mankind. 5. Mr. M.A. Zaidi, AOR appeared on behalf of Mr. Muhammad Akram Sheikh, Sr. ASC in Constitution Petition No.79 of 2007 and adopted the above arguments of the learned counsel for the petitioners. 6. Mr. Tariq Asad, ASC appearing in Constitution Petition No. 80 of 2007 also adopted the above arguments, while adding that:- a) The impugned Ordinance has been promulgated on the basis of personal satisfaction of the President of Pakistan but for extraneous reasons and to provide Const.P.76/2007, etc. 9 indemnity/immunity to the public office holders, therefore, is liable to be struck down. 7. Learned counsel appearing in Constitution Petition Nos. 76, 77 and 78 of 2007 prayed for suspension of operation of Sections 6 and 7 of the impugned Ordinance as according to their apprehension, both these Sections contain self-executory powers, therefore, if allowed to continue, the very object of filing of petitions will be frustrated because of extension of benefit to a public office holder, who intends to derive benefit out of the same. 8. It has been pointed out to them that ordinarily the provisions of a law cannot be suspended because this Court can only suspend a particular order, judgment or action, etc. However, we are inclined to observe in unambiguous terms that any benefit drawn or intended to be drawn by any of the public office holder shall be subject to the decision of the listed petitions and the beneficiary would not be entitled to claim any protection of the concluded action under Sections 6 and 7 of the impugned Ordinance, under any principle of law, if this Court conclude that the impugned Ordinance and particularly its these provisions are ultra vires the Constitution. 9. Issue notices to the respondents as well as to Attorney General for Pakistan as required in terms of Order XXVIIA CPC and Order XXIX Rule 1 of the Supreme Court Rules, 1980. As important questions of public/national interest have been raised in these petitions, therefore, a request be sent to Mian Allah Nawaz, ASC (former Chief Justice of Lahore High Court), Mr. Shaiq Usmani (former Judge of Sindh High Court) and Mr. M. Sardar Khan, former Attorney General for Pakistan, to appear and assist the Court as amicus curiae. Const.P.76/2007, etc. 10 Let these petitions be set for hearing for a date after three weeks.” 4. Here it comes the episode of 3rd November 2007, when General Pervez Musharraf, the then President and also the Chief of Army Staff, proclaimed emergency in the country by means of Proclamation of Emergency Order, 2007 and apart from issuing Provisional Constitution Order, 2007, also issued Oath of Office (Judges) Order, 2007 and under the garb of these unconstitutional instruments, the Judges of Supreme Court, including Chief Justice of Pakistan, were restrained to perform their constitutional functions and many of them were put under house arrest, whereas, Abdul Hameed Dogar (the then Judge of this Court) took the oath of the office of Chief Justice of Pakistan along with four other Judges, out of eighteen Judges of this Court, on the same day i.e. 3rd November 2007. 5. It is pertinent to note that by means of Article 5 (1) of the Provisional Constitution Order, 2007 dated 3rd November 2007 and then under Article 270AAA of the Constitution, inserted through the Constitution (Amendment) Order, 2007, all the laws including the Ordinances, issued by the then President, which were in force at the time of revocation of the proclamation of Const.P.76/2007, etc. 11 emergency, were provided permanency, as a result whereof the NRO, 2007 was also declared to be a permanent law. 6. On 6th February 2008, instant petitions were fixed before a Bench, comprising unconstitutional Chief Justice and four other Judges, when, on the request of the counsel, the same were adjourned for a date in office during last week of February 2008. Again, these matters were taken up on 27th February 2008 by the same Bench, when Dr. Mubashir Hassan (petitioner in Const. P.76/2007) requested for adjournment of the case on the ground that his counsel Mr. Abdul Hafeez Pirzada, Sr. ASC is undergoing medical treatment abroad. However, the Court, while dismissing Constitution Petition Nos.78, 79 & 80/2007 for want of prosecution, adjourned the Constitution Petition Nos. 76 & 77/2007, to a date in office, due to indisposition of the learned counsel but without providing opportunity of hearing to the counsel for the petitioners and without issuing notices to amicus curiae, proceeded to modify order dated 12th October 2007, to the following effect:- “The petitioners seek adjournment of these cases as their learned counsel (Mr. Abdul Hafeez Pirzada, Sr. ASC) is undergoing medical treatment abroad. 2. On the other hand, Malik Muhammad Qayyum, learned Attorney General for Pakistan has opposed the adjournment. He has further pointed out Const.P.76/2007, etc. 12 that in view of the provisions of Article 270-AAA of the Constitution of Islamic Republic of Pakistan, 1973 and the detailed judgment passed by this Court in the case of Tikka Iqbal Muhammad Khan vs. General Pervez Musharraf (Constitution Petition No. 87 of 2007), the National Reconciliation Ordinance (No.LX of 2007), herein after referred to as ‘the Ordinance’, would continue in force. 3. These Constitution Petitions are adjourned to a date in office due to indisposition of the learned counsel for the petitioners. Meanwhile, in view of the rule laid down in the case of Federation of Pakistan vs. Aitzaz Ahsan (PLD 1989 SC 61), the observations made by this Court in Para 8 of the order dated 12.10.2007 in Constitution Petition Nos.76-80 of 2007 to the effect that “however, we are inclined to observe in unambiguous terms that any benefit drawn or intended to be drawn by any of the public office holder shall be subject to the decision of the listed petitions and the beneficiary would not be entitled to claim any protection of the concluded action under Sections 6 and 7 of the impugned Ordinance, under any principle of law, if this Court conclude that the impugned Ordinance and particularly its these provisions are ultra vires the Constitution” are deleted. Resultantly, the Ordinance shall hold the field and shall have its normal operation. The Courts and authorities concerned shall proceed further expeditiously in the light of the provisions of the Ordinance without being influenced by the pendency of these petitions.” 7. It is to be noted that this Court vide judgment dated 31st July 2009, in the case of Sindh High Court Bar Const.P.76/2007, etc. 13 Association v. Federation of Pakistan (PLD 2009 SC 879), declared the Proclamation of Emergency, 2007, Provisional Constitutional Order, 2007, Oath of Office (Judges) Order, 2007, Provisional Constitution (Amendment) Order, 2007 and the Constitution (Amendment) Order, 2007, to be unconstitutional, illegal and void ab initio. Consequently all the Ordinances (including the NRO, 2007) were shorn of the permanency, which was provided under Article 270AAA of the Constitution, as validated in Tikka Iqbal Muhammad Khan v. General Pervez Musharraf (PLD 2008 SC 178). But the Court, while adhering to the doctrine of constitutional trichotomy, referred the NRO, 2007 along with other Ordinances, to the Parliament for consideration to make them Act of the Parliament, or the Provincial Assemblies, as the case may be, with retrospective effect. The relevant paras from the said judgment are reproduced hereinbelow for ready reference:- “186. Proclamation of Emergency and PCO No. 1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Article 270AAA and by the judgment in Tikka Iqbal Muhammad Khan’s case also having been shorn, such Ordinances would cease to be permanent laws with the result that the life of such Ordinances would be limited to the period specified in Articles 89 and 128 of the Const.P.76/2007, etc. 14 Constitution, viz., four months and three months respectively from the date of their promulgation. Under Article 89 of the Constitution, an Ordinance issued by the President, if not so laid before the National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation. Similarly, under Article 128 of the Constitution, an Ordinance issued by the Governor, if not so laid before the concerned Provincial Assembly, stands repealed on expiration of three months from its promulgation. 187. It may be noted that such Ordinances were continued in force throughout under a wrong notion that they had become permanent laws. Thus, the fact remains that on the touchstone of the provisions of Articles 89 and 128 read with Article 264 of the Constitution and section 6 of the General Clauses Act, 1897, only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after 3rd November, 2007, and not thereafter, until such Ordinances were enacted as Acts by the Parliament or the concerned Provincial Assembly with retrospective effect. 188. In the light of the above, the question of validation of such Ordinances would be required to be decided by the Parliament or the concerned Provincial Assemblies. However, the period of four months and three months mentioned respectively in Articles 89 and 128 of the Constitution would be deemed to commence from the date of short order Const.P.76/2007, etc. 15 passed in this case on 31st July, 2009 and steps may be taken to lay such Ordinances before the Parliament or the respective Provincial Assemblies in accordance with law during the aforesaid periods. This extension of time has been allowed in order to acknowledge the doctrine of trichotomy of powers as enshrined in the Constitution, to preserve continuity, to prevent disorder, to protect private rights, to strengthen the democratic institutions and to enable them to perform their constitutional functions, which they were unconstitutionally and illegally denied under PCO No. 1 of 2007. Needless to say that any validation whether with retrospective effect or otherwise, shall always be subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground.” (emphasis provided). 8. It seems that the NRO, 2007 was laid before the National Assembly from where it travelled to the Standing Committee of the National Assembly on Law & Justice, where the matter was taken up in its meetings held on 29th & 30th October 2009, and subsequently, it was again brought on the floor of the National Assembly from where it was withdrawn as is evident from the documents placed on record. Details in this behalf, if needed, shall be considered subsequently. Const.P.76/2007, etc. 16 9. These petitions remained pending in the office. In the meantime, another petition being, Civil Petition No.142-K of 2009 (now Civil Appeal No.1094/2009), was filed by one Fazal Ahmed Jat, praying therein that the benefit of the NRO, 2007 extended to the other accused of or convicted under the National Accountability Ordinance, 1999 [herein after referred to as “the NAO, 1999”] be also extended to him. The Constitution Petition Nos. 78, 79 & 80 of 2007, on the request of petitioner and with the consent of learned Acting Attorney General for Pakistan were restored on 7th, 14th & 8th October 2009, respectively. Meanwhile, Constitution Petition No. 59 of 2009 was also filed, challenging the vires of the NRO, 2007. Human Right Case Nos.14328-P to 14331-P & 15082-P of 2009 filed by several convicts, claiming the benefit of the NRO, 2007 were also clubbed with the other petitions on the subject. 10. In all the Constitution Petitions, almost same prayers have been made, however, for reference, prayer clause from one of the petitions i.e. Constitution Petition No.78 of 2007, filed by Qazi Hussain Ahmed, Amir Jamat-e- Islami, is reproduced hereinbelow for convenience:- “The Ordinance entitled ‘National Reconciliation Ordinance, 2007’ be declared as being utterly unconstitutional and violate both the Constitution, Const.P.76/2007, etc. 17 law of the land, and International Treaties & the UN Law. It is further prayed that it be declared that the said Ordinance enacted on 5th October is contrary to Law and the Constitution as being mala fide, ultra vires and corum non judice and of no consequential effect ab initio. Any identical relief pendente lite due to the petitioner ex debito justitae be graciously granted.” 11. In response to notices of hearing, no defence was put up on behalf of the Federation of Pakistan and others, including all the Federating Units as well as the National Accountability Bureau [herein after referred to as ‘the NAB’]. On 7th December, 2009, learned Acting Attorney General for Pakistan, however, placed on record a written statement before the Court, wherein significantly, in unambiguous terms, it was mentioned that “the Federation of Pakistan reiterates as repeatedly stated by the Prime Minister of Pakistan Syed Yousaf Raza Gillani that Seventeenth Amendment is not valid, as much as it violates the basic features of the Constitution. Therefore, as Parliamentary Committee of both the Houses is in the process of preparing its recommendations”. As far as the remaining clauses relating to supremacy of the Constitution and non-defending of the NRO, 2007 are concerned, same were incorporated therein as well. Accordingly, relevant Const.P.76/2007, etc. 18 contents of the letter and the stand of the Federating Units and the NAB were reduced in writing, during the hearing, which is reproduced hereinbelow:- “Mr. Shah Khawar, Acting Attorney General for Pakistan, who is otherwise appearing in response to notice under Order XXVII-A CPC, has placed on record a written statement on behalf of Federation of Pakistan, relevant paras wherefrom, being No. 2&3, are reproduced hereinbelow:- 2. That the Federation believes in supremacy of the Constitution of 1973 and the Parliament. 3. That the National Reconciliation Ordinance, 2007 was promulgated by the previous regime and I am under instruction not to defend it. 2. Learned Advocates General of Sindh, NWFP & Balochistan, and Additional Advocate General Punjab, when enquired about their reaction in respect of statement, so filed by the Acting Attorney General for Pakistan, stated that they agree with the stance taken by the Federation of Pakistan. Learned Additional Prosecutor General NAB also adopted the above stance of the Federation of Pakistan.” 12. During the course of hearing, Federation of Pakistan has submitted Civil Misc. Application Nos. 4875 & 4898 of 2009, of identical nature, wherein attention of the Court was drawn towards its earlier judgment passed in Sindh High Court Bar Association’s case (PLD 2009 SC 879) and at pages 11 & 12 of the said applications, apprehension Const.P.76/2007, etc. 19 of destabilization of the system was expressed in the following terms:- “If however, this Hon’ble Court wishes to rule upon wider issues other than those raised in the petition and prayer the Federation requests that fresh petitions be filed precisely stipulating these issues whereupon the Federation will seek instructions on such new petition. Pak Today is poised at the cross roads. One road leads to truly federal democratic welfare state with the balance of power between an Independent judiciary, a duly elected Govt. representing the will of the people a determined executive which is fighting the war against terrorism and poverty. The second road leads to destabilization of the rule of law. The people of Pakistan await your verdict.” As in above statement apprehension of destabilization of the system has been expressed, therefore, Mr. Kamal Azfar, learned Sr. ASC, who had filed the Applications, referred to hereinabove, was called upon to submit an affidavit, clarifying the stand taken by him. Surprisingly, he, verbally, contended that “apprehension of destabilization of the democratic system is from GHQ and CIA”. The words so uttered by him are as follows:- “There are extra constitutional forces in Pakistan and outside Pakistan which are trying to destabilize this country. I say more openly, the dangers to Pakistan come from the CIA & GHQ.” Const.P.76/2007, etc. 20 The above statement on behalf of Federation was prominently noted by the leading newspapers. On the same day, learned Acting Attorney General once again made a categorical statement of accepting the decision, whatsoever, will be recorded by this Court. His such statement has also been recorded vide order dated 15th December, 2009, which is reproduced hereinbelow for convenience:- “Learned Attorney General for Pakistan has concluded his submissions, while reiterating his stand, taken on the first day of hearing that the Federal Government is not defending the NRO. ……...” On the next date of hearing, another written statement was filed by Mr. Kamal Azfar, learned Sr. ASC, which reads as follows:- “STATEMENT In Compliance of the orders of the Hon’ble Supreme Court of Pakistan to appraise the Hon’ble Court as to how the Federation would interpret the wording “the second road leads to the destabilization of the rule of law”, it is submitted as follows:- (1) There is no mention of the wording ‘threat to democracy’ in the Statement. (2) The Federation supports the Prosecution, in accordance with law, of persons alleged to have done wrong doing. The Federation does not oppose the Petitions seeking a declaration that the National Reconciliation Ordinance 2007 (NRO) is illegal and unconstitutional. Const.P.76/2007, etc. 21 (3) With regard to the “wider issues” mentioned in paragraph No.9 these refer to those matters which were raised by the Petitioner’s counsel during oral arguments and which find no mention whatsoever in the Petitions. For example, submissions made in respect of Articles 89 (in particular the alleged concept of “implied Resolution”) and A.264 on the effect of Repeal. (4) The Federation’s view is that those who have benefited under the NRO should be proceeded against under the appropriate laws before the courts having the competent jurisdiction. As factual matters need to be determined by the Trial Courts. (5) So far as my comments made yesterday before this Hon’ble Court concerning the threat from GHQ, the CIA and the contents of paragraph 9 of the CMA are concerned these were my personal views and were not made on the instructions of the Federation of Pakistan. As such I withdraw the same, which should not be considered by this Hon’ble Court in any manner whatsoever and the same should be deleted and expunged from the record. (6) It is emphasized that the Federation of Pakistan holds this Hon’ble Court in the highest esteem and has the greatest respect for the same.” The above statement, filed on behalf of Federation of Pakistan, has disclosed the intention of Federation of Pakistan, particularly to the effect that those who have acquired benefit under the NRO, 2007 should be proceeded against under the relevant laws, before the Courts of competent jurisdiction, as factually matters need to be determined by the Trial Court. Learned Acting Attorney General for Pakistan and learned counsel appearing for Const.P.76/2007, etc. 22 Federation of Pakistan have reiterated this stand, time and again, during the course of hearing. 13. Mr. Salman Akram Raja, ASC for the petitioner in Constitution Petition No. 76 of 2007, submitted as under:- a) ‘Reconciliation’ is not a new phenomenon, as the same has been adopted in various jurisdictions of the World, going back right from the Fatah-e- Makkah, when a general amnesty was announced by the Holy Prophet (PBUH) for the people of Makkah, till 1995 when the same was provided in South Africa through Promotion of National Unity and Reconciliation Act of 1995. Although, in the NRO, 2007 the word ‘national reconciliation’ has been borrowed from the history but it has nothing to do with it, in any sense. b) Section 7 of the NRO, 2007 is patently discriminatory on the ground that it has created unreasonable classification between the ‘holders of public office’ and the general public and then further created classification amongst the ‘holders of public office’ on the basis of time period, therefore, being promulgated in colourable exercise of legislative power, it is tantamount to malice in law. c) The classifications made through the NRO, 2007 are overbroad as a wide array of Const.P.76/2007, etc. 23 persons including politicians, bureaucrats, Army personnel and others have been included in it under the label of ‘holders of public office’. It is inclusive on the basis of time specification, as it does not cover the cases/ proceedings initiated after 12th October 2007, as such, having irrational classification is liable to be struck down. d) The NRO, 2007 provides indemnity and potential cover to a particular class of persons involved in criminal cases including the ‘holders of public office’ from the operation of law by withdrawing cases and termination of proceedings pending against them. This is tantamount to an affirmative action in favour of elite class. e) Section 7 of the NRO, 2007 is self executory provision, which took effect on its own terms, with effect from 5th October 2007. f) The NRO, 2007 although has lapsed on the expiry of its constitutional life but its effect is likely to remain intact, therefore, it has to be declared void ab initio and nullity in the eye of law. g) The preamble of the NRO, 2007 is not in consonance with the text of the statute and do not reconcile with each other. [reliance placed on the cases of Abdul Baqi v. Muhammad Akram (PLD 2003 SC 163) and Const.P.76/2007, etc. 24 Ghulam Mustafa Insari v. Govt. of the Punjab (2004 SCMR 1903)]. h) The NRO, 2007 is time specific as it has created further classification amongst its subject i.e. period commencing from 1st January 1986 to 12th October 1999, therefore, being not based on intelligible differentia relatable to lawful object, is violative of Article 25 of the Constitution and is liable to be struck down. [reliance placed on the case of Govt. of Balochistan v. Azizullah Memon (PLD 1993 SC 341)]. i) The provisions of Section 2 of the NRO, 2007 provides benefit to the persons involved in the cases of murder, rape, kidnapping for ransom and Hudood cases, therefore, it is ultra vires to Article 2A of the Constitution being violative of the Injunctions of Islam. j) In view of Section 494 Cr.P.C., the permission to withdraw cases has to be given by the Court judiciously after due application of mind. By means of Section 2 of the NRO, 2007 sub-Sections (2) & (3) have been added in Section 494 Cr.P.C., whereby judicial powers of the Court have been vested in a Review Board (Executive body), which amounts to usurping such power of the Court, therefore, Section 2 of the NRO, 2007 is liable to be struck down Const.P.76/2007, etc. 25 being violative of Article 175 of the Constitution, regarding separation of powers between Executive and Judiciary. [reliance placed on the cases of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), Bihar v. Ram Naresh Pandey (AIR 1957 SC 389), Rahul Agarwal v. Rakesh Jain {(2005) 2 SCC 377=AIR 2005 SC 910}, Liyanage v. The Queen {(1967) 1AC 259}, & Brandy v. Human Rights Commission (183 CLR 245)]. k) The NRO, 2007 is a special law, which cannot purport to amend the general law i.e. Cr.P.C., therefore, such attempt is not allowable. It is also against the principle that a temporary law cannot amend the permanent law, as the maximum life of an Ordinance is 120 days and no amendment can survive beyond that period and lapses with the lapse of temporary legislation. [reliance placed on the cases of Government of Punjab v. Zia Ullah Khan (1992 SCMR 602) & Shabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66)]. l) Section 7 of the NRO, 2007 whereby the cases and proceedings pending against the ‘holders of public office’ have been declared to stand withdrawn and terminated, amounts to legislative judgment, as such it is violative of the principles of Const.P.76/2007, etc. 26 independence of Judiciary and separation of powers as enshrined in Article 175 of the Constitution because it is impermissible intrusion in the domain of the judiciary. [reliance placed on the cases of Govt. of Balochistan v. Azizullah Memon (PLD 1993 SC 341) & Smt. Indra Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299)]. m) Section 3 of the NRO, 2007 whereby the Representation of the People Act, 1976 has been amended, has no relevancy with the preamble of the NRO, 2007. n) Sections 4 & 5 of the NRO, 2007 whereby the sitting members of the Parliament and Provincial Assemblies have been provided protection from arrest, without recommendations of Special Parliamentary Committee on Ethics, are no more in field, after expiry of the constitutional life of the NRO, 2007. o) Section 6 of the NRO, 2007 whereby the orders or judgments passed by the Courts against an accused in absentia have been declared to be void ab initio and not to be acted upon, amounts to create a permanent hindrance in Article 63(1)(p) of the Constitution, as through the amendment in Section 31A of the NAO, 1999, certain persons, who were kept out of the Const.P.76/2007, etc. 27 Parliament have been allowed to enter into the Parliament. p) Section 7 of the NRO, 2007 also defeats the provision of Article 62(f) of the Constitution, as all the persons, against whom the cases or proceedings have been withdrawn or terminated would claim to be righteous and Ameen. q) The provisions of the NRO, 2007 i.e. Sections 6 & 7, are contrary to the basic principle relating to annulment of judgments, because the proceedings, orders or judgments passed by the competent Court in accordance with the existing law in favour of a party, cannot be annulled through a legislative instrument unless the law, underlying the basis of such proceedings, orders and judgments, will be removed. [reliance placed on the case of Fecto Belarus Tractor Ltd. v. Government of Pakistan (PLD 2005 SC 605)]. r) The NRO, 2007 exhorts about or indemnifies a particular class of persons including the ‘holders of public office’, from proceedings, actions and orders passed by the competent authorities whereas neither the legislature nor the executive has power to grant pardon by promulgation of an instrument or an Act of amnesty, except the power of the President to grant such Const.P.76/2007, etc. 28 pardon to an accused person under Article 45 of the Constitution. Such indemnity or protection under the NRO, 2007 cannot be equated with the pardon. He concluded his arguments while stating that the NRO, 2007 is bad in the eye of law whereby judicial functions have been vested in an executive body arbitrarily; it is, ex facie, might not be discriminatory but in fact it is discriminatory, promulgated in total violation of the constitutional provisions by the lawmaker, with mala fide intention. If it is allowed to remain on the statute book, it will be a permanent blot on conscience of nation. 14. Mr. Abdul Hafeez Pirzada, Sr. ASC also appeared on behalf of petitioner in Constitution Petition No. 76 of 2007 and submitted his formulations as under:- a) The NRO, 2007 is, as a whole, void ab initio, non est and never took birth, therefore, nothing, which is the product of this Ordinance, or done in pursuance of this Ordinance or under it, ever came into existence or survived. b) The NRO, 2007 is void because it is a fraud on the Constitution and transience well beyond the limited legislative power conferred by Article 89 of the Constitution Const.P.76/2007, etc. 29 on the President, as the President cannot go beyond the limits circumscribed therein. c) Word “reconciliation” has been defined in number of dictionaries but when the word ‘national’ is prefixed with it, its meaning becomes entirely different and it means “the reconciliation of the whole nation”. The NRO, 2007 has no nexus with the ‘national reconciliation’ rather it has trampled over the fundamental rights of the entire nation of Pakistan. [referred to the concluding part of the Preamble of the Constitution to define the word ‘national reconciliation’]. d) The NRO, 2007 is ex facie void for the reason that surprisingly its operation has been confined to a specific period commencing from 1st January 1986 to 12th October 1999. e) The NRO, 2007 is void ab initio because it violates the dictum laid down by this Court in Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426), improved upon in Zafar Ali Shah v. General Pervez Musharraf (PLD 2000 SC 869), wherein, after a great deal of efforts the Court virtually treated Article 4 of the Constitution as ‘due process clause’. Const.P.76/2007, etc. 30 f) The four salient features of the Constitution, identified in the judgments of this Court are; Parliamentary form of Government; Federating character of the State; Independence of Judiciary; and Fundamental Rights of the people along with Islamic provisions. Even the Parliament has no power to alter these salient features of the Constitution. The NRO, 2007 is clear invasion on the 3rd pillar of the State i.e. judiciary, without which the modern society cannot exist. [reliance placed on the case of Zafar Ali Shah (PLD 2000 SC 869)]. g) The NRO, 2007 is not only usurpation of judicial powers but also usurpation of constitutional powers of the Parliament. h) The NRO, 2007 has directly violated and overridden the provisions of Articles 62 & 63 of the Constitution. It vitally affects the democratic rule in the country, by tampering and interfering with the qualifications and disqualifications of a candidate to be elected or chosen as a member of the Parliament and subsequent disqualification after having become the member of the Parliament. AND The Article 62 of the Constitution applies only at the time of filing of nomination Const.P.76/2007, etc. 31 papers or contesting elections, however, Article 63 of the Constitution continues to be in force even after a candidate has been elected as a member of the Parliament and he can be removed by the writ of quo warranto, by the Speaker of the National Assembly through reference or by the Chief Election Commissioner. This Court in number of judgments has held that conviction awarded in absentia is void, but this view needs to be revisited on the touchstone of Article 63(1)(p) of the Constitution because how a person can become a member of the Parliament if he is an absconder. i) Through the promulgation of the NRO, 2007, the conscience of the Constitution has been divorced. There are mixed constitutional and moral aspects and one cannot divorce the morality from the Constitution. [reliance placed on the cases of R.S.Jhamandas v. Chief Land Commissioner (PLD 1966 SC 229) and Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)]. j) Even a validly enacted Ordinance does not necessarily have to have the statutory life of 120 days because before the expiry of the same, the National Assembly can strike it down through a resolution. In the case of Const.P.76/2007, etc. 32 NRO, 2007 the National Assembly has refused to own this law, even after expiry of its statutory life and this is tantamount to its rejection by the Parliament. k) The Constitution envisages for trichotomy of powers between the executive, legislative and judicial organs of the State. The NRO, 2007 is a clear intrusion by the legislature into the sphere of the judiciary, as such liable to be struck down being violative of doctrine of trichotomy of powers. l) The Judiciary is custodian of the Constitution and the fundamental rights. It is the superior observer of what is happening and to see that there is no transgression in the separation of power. It has its legal obligation, based upon the principle of checks and balances. That is why the Judiciary has not been made part of the State under Article 7 of the Constitution, which has to be read with Article 175 of the Constitution. m) The preamble of the NRO, 2007 poses the official avowed reason to promulgate this Ordinance, which is not the real object behind its promulgation as it was a deal between two persons, for their personal objectives and even the persons representing the people of Pakistan at that time in the Parliament, were not made Const.P.76/2007, etc. 33 aware of it. Therefore, it cannot be said a ‘national reconciliation’ as there is total variance between the opening statement and the contents of the Ordinance. n) The Constitution does not make an Ordinance a permanent law unless it is made an Act of Parliament. Applying the principle enshrined in Section 6 of the General Clauses Act, 1897, there are two types of repeals; first one is ‘deeming repeal’ and the other is ‘actual repeal’ and this Court has to consider both of them accordingly. Therefore, in order to save an Ordinance, the law has to be enacted retroactively by the Parliament. But, this Court could not extend the life of the Ordinance beyond the constitutional life i.e. 120 days. More so, since the Article 270AAA of the Constitution has been declared null and void by means of judgment in Sindh High Court Bar Association’s case (PLD 2009 SC 879), the NRO, 2007 has lost its permanency, provided by the said Article. o) The Executive has to act intelligently and responsibly in classifying actions, which ought to be saved under temporary law, particularly when fundamental rights are involved. The NRO, 2007 is a ‘bill of attainder’ against the people of Pakistan Const.P.76/2007, etc. 34 which violates their fundamental rights enshrined in the Constitution and the spirit of Article 4 of the Constitution has been destroyed, which has been equated with the ‘due process clause’. [reliance placed on the case of Jamat-i-Islami Pakistan v. Federation of Pakistan (PLD 2000 SC 111)]. Learned counsel concluded his arguments. However, when questioned about the consequences, in case the Court ultimately comes to the conclusion that the NRO, 2007 is void ab initio being ultra vires the Constitution, he replied that the consequence would be that the beneficiaries of the NRO, 2007 shall be relegated to the position as prevailing on 4th October 2007, prior to promulgation of the NRO, 2007. 15. Dr. Mubasher Hassan (petitioner in Constitution Petition No. 76/2007) appeared and stated with special permission of the Court that when the two organs of the State, as defined in Article 7 of the Constitution, become incapable of performing their duties entrusted to them under the Constitution, it is incumbent upon the third organ i.e. judiciary to come forward for rescue of the State. 16. Mr. Ikram Chaudhry, ASC for the petitioner in Constitution Petition No. 77 of 2007, appeared and argued that:- Const.P.76/2007, etc. 35 a) The NRO, 2007 is person specific, purpose specific and period specific, therefore, it violates the provisions of Article 25 of the Constitution. b) The Judiciary has been vested with important function of supervising the other organs of the State that is why Article 7 of the Constitution purposely excluded it from the definition of the State. c) The primacy and supremacy of the Chapter of fundamental rights remain the salient feature of the Constitution and when laws are examined on the touchstone of various provisions of the Constitution, Article 8 comes into play which provides that any law inconsistent with or in derogation of fundamental rights is void. d) The NRO, 2007 does not meet the criterion, laid down in Article 89 of the Constitution, particularly with regard to ‘satisfaction’ of the President, which should always be fair, just and never arbitrary, therefore, the NRO, 2007 having inherent mischief in it, as it conceives to protect the interest of a particular person, is a bad law. e) Article 89 of the Constitution does not save the President from its intents and the purposes as in view of Article 5 of the Constitution he is bound to follow the law. Const.P.76/2007, etc. 36 Therefore, the promulgation of the NRO, 2007 is clear violation of Article 4 & 25 of the Constitution. [reliance placed on the case of Jibendra Kishore, etc. v. Province of East Pakistan (PLD 1957 SC 9)]. While concluding his arguments he referred to ‘United Nations Convention Against Corruption’, ‘Al-Farooq’ by Allama Shibli Noumani, ‘Grammar of Politics’ by Harold J. Laski, ‘Spirit of Liberty, Papers & Addresses of Learned Hand’ by Irving Dilliard, ‘The Supreme Court, America’s Judicial Heritage’ by Patricia C. Acheson. He lastly argued that if the Court comes to the conclusion that the impugned Ordinance is bad law, then the consequential relief would be the restoration of all the cases to their original stage. 17. Dr. Farooq Hassan, Sr. ASC appearing for the petitioner, in Constitution Petition No.78 of 2007, submitted his written formulations, while adding that:- a) The NRO, 2007 is void being violative of the fundamental rights contained in Article 25, 9 and possibly Articles 14, 24, 2 & 2A of the Constitution. b) The NRO, 2007 is the result of abuse of power, mala fides, and corum-non-judice as its objects are clearly outside the purview of Const.P.76/2007, etc. 37 ordinary and normal law making authority of the President under Article 89 of the Constitution, as such it is void in entirety. c) The NRO, 2007 amounts to subversion of the Constitution as it is the result of a deal between the dictator and next set of rulers. [referred to clippings of different newspapers]. d) The subject matter of the NRO, 2007 is not found in either of the Legislative lists provided in Fourth Schedule of the Constitution, as such it is ultra vires the Constitution. e) Under the International Treaties i.e. “United Nations Convention Against Corruption”, to which the Pakistan is also a signatory, no law can be passed which provides protection to corruption and corrupt practices. He concluded his arguments while saying that the property of the Government is the property of the people of Pakistan, which has been misappropriated by the persons to whom protection has been provided under the NRO, 2007 therefore, it is liable to be struck down. 18. Mr. Tariq Asad, ASC for the petitioners in Constitution Petition No. 80 of 2007 argued that Article 89 of the Constitution referred to ‘satisfaction’ of the President Const.P.76/2007, etc. 38 which would be either ‘subjective’ or ‘objective’. On the basis of material, available on record, there were no such circumstances to promulgate the NRO, 2007 therefore, the ‘subjective’ satisfaction of the President is missing, as such it becomes the ‘objective’ satisfaction, which is justiciable and subject to judicial review by the Court. [reliance placed on State of Rajasthan v. Union of India (AIR 1977 SC 1361), A.K. Roy v. Union of India (AIR 1982 SC 710) and also to definition of the words ‘satisfaction’ & ‘subjective’ from Black’s Law Dictionary]. 19. Raja Muhammad Ibrahim Satti, Sr. ASC, appearing for appellant in Civil Appeal No. 1094 of 2009, while defending the NRO, 2007 made his submissions as follows:- a) It is nobody’s case that the President has no power to promulgate the Ordinance under Article 89 of the Constitution or the said Article is redundant. b) The NRO, 2007 was validly promulgated as the pre-conditions for promulgation of an Ordinance by the President, under Article 89 of the Constitution were fulfilled. c) It is the duty of the Court to interpret the Constitution and to adjudge the validity of a law, whether proper assistance has been rendered or not. [reliance placed on Const.P.76/2007, etc. 39 Federation of Pakistan v. M. Nawaz Khokhar (PLD 2000 SC 26) & Ghulam Hassan v. Jamshaid Ali (2001 SCMR 1001)]. d) During the statutory life of the NRO, 2007 both the Houses of the Parliament did not disapprove it through any resolution and allowed it to continue, therefore, if the Court ultimately comes to the conclusion that it was validly enacted and the benefits derived from its operation are allowed to continue, then the appellant shall also be entitled for the same benefit. 20. Mr. A.K. Dogar, learned Sr. ASC for the petitioner in Constitution Petition No. 59 of 2009, stated that his arguments are two fold i.e. on factual plane as well as on legal plane. On factual plane he argued that:- The NRO, 2007 is a power sharing deal between the then President and the head of a political party. [reliance placed on the books i.e. ‘Reconciliation, Islam, Democracy and the West’ by late Mohtarma Benazir Bhutto and ‘the Way of the World’ by Ron Suskind]. On legal plane, he made the following submissions:- a) The NRO, 2007 is the result of abuse of ‘public office’ for private gain. AND Const.P.76/2007, etc. 40 Because, corruption vitiates like fraud, which vitiates all transactions, therefore, the NRO, 2007 stands vitiated by the effect of abuse of public office for private gain. AND The NRO, 2007 is a document which is non est. It is like a still born which dies in mother’s wombs. [reliance placed on Zafar Ali Shah’s case (PLD 2000 SC 869) & Black’s law Dictionary for the definition of ‘corrupt’]. b) Though Article 89 of the Constitution empowers the President to promulgate an Ordinance but Article 48(1) of the Constitution provides that such power lies with the Prime Minister and his Cabinet, who have to advise the President, therefore, the President cannot in his individual capacity issue an Ordinance, or enter into some negotiations and then issue an Ordinance. [reliance placed on Tirathmal v. The State (PLD 1959 Karachi 594)]. c) The Ordinance making power, vested in the President, is a legacy of the British Rule, because in both kinds of democracies i.e. in the Parliamentary form of Government in UK and the Presidential form of Government in America, such power does not exit. This power is anti-democratic and only provided in the Constitutions of Const.P.76/2007, etc. 41 Pakistan and India, who remained under the British rule for such a long period. d) Gen. Pervez Musharraf was not constitutionally elected President, therefore, within the meaning of Article 89 of the Constitution, he had no such power to issue such Ordinance because he seized power by force and was self imposed President through Legal Framework Order, 2002 and 17th Amendment. [reliance placed on Sindh High Court Bar Association’s case (PLD 2009 SC 879)]. e) By virtue of Article 264 of the Constitution, a law, which is repealed can give rise to rights and obligation but not a law which does not exist from its very inception (as per statement of learned Attorney General) and is still born, therefore, under the NRO, 2007 no rights exist. f) This Court has no Ordinance issuing power, therefore, it could not give life to the NRO, 2007 which has lapsed on 5th February 2008 and this Court, could only extend its time under the law of necessity and not otherwise. g) The circumstances mentioned in the preamble of the NRO, 2007 itself are of permanent nature and do not require any immediate, emergent and quick treatment. Const.P.76/2007, etc. 42 h) A law cannot be amended through the Ordinance because it is violation of Articles 238 & 239 of the Constitution. i) Withdrawal from prosecution, as provided in Section 2 of the NRO, 2007 without hearing the complainants in the cases of murder, rape, etc. is violation of the principles of natural justice as such no such amendment can stay. [reliance placed on Zia Ullah Khan’s case (1992 SCMR 602)]. j) Section 4 of the NRO, 2007 by means of which immunity has been provided to sitting members of the Parliament from arrest, offends Articles 24 & 25 of the Constitution. k) Helping the rich and powerful persons, who have misappropriated millions of rupees, as against the victims of exploitation, is violation of Article 3 of the Constitution. l) With the advancement of civilizations, the moral and ethical codes have been converted into enforceable legal formulations. [reliance placed on D.S. Nakara’s case {(1983) 1 SCC 305 = AIR 1983 SC 130} and Sindh High Court Bar Association’s case (PLD 2009 SC 879)]. Learned counsel, while concluding his arguments stated that there are two enemies of mankind i.e. desire of wealth and Const.P.76/2007, etc. 43 desire of power and time is witness to it. According to him the NRO, 2007 is destructive to the entire nation. 21. Mr. Shahid Orakzai, appearing in Civil Misc. Application No. 4842 of 2009 in Constitution Petition No. 76 of 2007, argued that:- a) Any Ordinance promulgated by the President under Article 89 of the Constitution lapses on the day when the National Assembly is dissolved either by the President, Prime Minister or due to expiry of its constitutional term. [relied upon Article 76(3) of the Constitution]. b) While issuing an Ordinance by the President, the advice of the Prime Minister or Cabinet is necessary in view of Article 48 of the Constitution and in absence of such advice, it will be the act of an individual. c) The word ‘or’ used in Article 70 (1) means that a bill can be placed before the Parliament, regarding only one subject, either from the Federal Legislative List or from the Concurrent Legislative List and not regarding subjects from both the lists. As the NRO, 2007 contains the subjects of both the Legislative lists, therefore, it is violative of Article 70 (1) of the Constitution. Const.P.76/2007, etc. 44 d) Through the NRO, 2007 amendment has been made in the Cr.P.C. which has more application in the Provinces, as such the consent of Provincial Governments was necessary, while making such amendment. Therefore, the NRO, 2007 is violative of Article 142(c) of the Constitution. e) The word ‘any’ used in Article 70 of the Constitution, means ‘similar and more than one’, therefore, the Ordinance cannot make laws relating to more than one subject at a time. f) The word ‘any’ used in Article 184(3) of the Constitution refers to violation of one of the fundamental rights, therefore, the jurisdiction of this Court under the said provision would be attracted if only one fundamental right has been infringed and the same would not be available in a case which involved violation of more than one fundamental rights. Now this Court has to examine which one of the fundamental rights has been infringed by the NRO, 2007. 22. Mr. Ashtar Ausaf Ali, ASC appearing for petitioner in Constitution Petition No.79 of 2007 adopted the arguments rendered Mr. Abdul Hafeez Pirzada, Sr. ASC. However, he placed on record some material in support of his petition. Const.P.76/2007, etc. 45 23. Mr. Shah Khawar, Acting Attorney General for Pakistan, reiterated the stance taken by the Federal Government in the written statement dated 7th December 2009, to the effect that the NRO, 2007 was promulgated by the previous regime and he is under instructions not to defend it. He further stated that whatever decision will come, it will be honoured by the Government. On Court’s query about the consequences, if ultimately the NRO, 2007 is declared to be void ab initio, he replied that let allow these petitions and let the law take its own course. 24. Mr. Kamal Azfar, learned Sr. ASC appeared and reiterated the stand taken in the statement dated 15th December 2009, to the effect that the Federation does not oppose the petitions seeking a declaration that the NRO, 2007 is illegal and unconstitutional. 25. Learned Advocates Acting General of the Provinces adopted the arguments of the Attorney General for Pakistan. However, except Advocate General Sindh, all the other Advocates General filed statements, stating therein that neither any Review Board was constituted nor the benefit of the NRO, 2007 was extended to any under trial accused, except those who were accused under the NAO, 1999. Const.P.76/2007, etc. 46 26. Mr. M. Sardar Khan, Sr. ASC appeared as Amicus Curiae argued as follows :- a) The NRO, 2007 is not only inconsistent with fundamental rights enshrined in Article 25 of the Constitution but also is in conflict with other provisions of the Constitution such as Article 175. Therefore, it is not a valid law rather it is a bad law. b) The NRO, 2007 is violative of Article 5 of the Constitution, which postulates that it is inviolable obligation of every citizen to obey the Constitution and the law. c) Promulgation of the NRO, 2007 is intentional violation of Article 8(2) of the Constitution, which provides that the State shall not make any law which takes away or abridges the fundamental rights conferred by the Constitution, if it does so, then it shall be void. d) The NRO, 2007 is violative of Article 2A of the Constitution which requires that the authority, which is conferred, is to be exercised in accordance with the Constitution and within the limits prescribed by the Almighty. e) The provisions of the NRO, 2007 i.e. Sections 2, 3, 4, 6 & 7, are void and invalid for being against the Injunctions of Islam, violative of the mandate of Article 175 of Const.P.76/2007, etc. 47 the Constitution, and repulsive to the provisions of Article 62 & 63 of the Constitution as it has given way to the ineligible persons to enter the Assemblies and to become public representatives. f) The object of this law for all intents and purposes does not seem to be ‘reconciliation’ but to pave way and facilitate to those persons charged with corruption, plunders of national wealth and fraud, to come back, seize and occupy the echelons of power again. Its aim seems to legalize corruption and the crimes committed by those in power in the past. g) Courts have been deprived by virtue of this law of their judicial functions by conferring powers on administrative bodies. h) The NRO, 2007 is not only a discriminatory law but it has also been applied discriminately, therefore, liable to be struck down. [reliance placed on Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66)]. j) Section 3 of the NRO, 2007 although is very innocent, but it has no nexus with the reconciliation. It is merely a cosmetic provision just to give colour of respectability to the NRO, 2007 and has no nexus with its preamble. [referred to Const.P.76/2007, etc. 48 Section 40 of the Representation of the People Act, 1976.] 27. Mian Allah Nawaz, Sr. ASC also appeared as Amicus Curiae. He, after elaborating the philosophy of morality, theory of law, theory of kleptocracy and the philosophy of the Constitution, contended as follows:- a) The NRO, 2007 is not a good law as it violates the intrinsic value of the law and intrinsic value of behaviors, therefore, liable to be struck down, otherwise it would create anarchy and greed in the society. b) Any law which flagrantly violates the theory of basic instincts and promotes the theory of satanic instincts should be struck down, otherwise the society will be swamped by the satanic instincts. c) The protection of the fundamental rights of the people is the soul of the Constitution. The NRO, 2007 is violative of the basic soul of the Constitution. d) The NRO, 2007 is classical manifestation of theory of kleptocracy, as it has been promulgated for the benefit of two persons, one who wanted to remain in power and the other who wanted to come to power. e) The NRO, 2007 is so bad and kleptocratic in nature that neither any provision of the Const.P.76/2007, etc. 49 Constitution validates it nor any law gives conscious to it. f) The actions taken and the benefits derived from the NRO, 2007 cannot be protected on the touchstone of Article 264 of the Constitution, as it is not applicable to the NRO, 2007 which is not just void but immoral. [reliance placed on Ram Prasad v. Union of India (AIR 1978 Raj. 131) and Bachan Singh v. State of Punjab (AIR 1982 SC 1325)]. While concluding his arguments he added that in case the NRO, 2007 is declared void ab initio then as a consequence whereof all the cases, which have been withdrawn under the NRO, 2007 will take rebirth. 28. Mr. Shaiq Usmani, Sr. ASC appeared as Amicus Curiae and made his submissions as follows:- a) The NRO, 2007 cannot be justified on the ground that it was just an amnesty because even if it be considered so, it is not legitimate, as legitimate amnesty is one, which is accountable. b) The NRO, 2007 is violative of Article 8 of the Constitution, therefore, liable to be struck down. c) The NRO, 2007 being discriminatory, is violative of Article 25 of the Constitution, Const.P.76/2007, etc. 50 therefore, is liable to be struck down. [reliance placed on the case of I.A. Sherwani v. Government of Pakistan (1991 SCMR 1041)]. d) The NRO, 2007 is void ab initio as it is violative of the salient features of the Constitution and the principle of trichotomy of powers. e) The NRO, 2007 is violative of Article 89 of the Constitution. He concluded his arguments while adding that the then Attorney General apparently had no authority to correspond with the foreign authorities for withdrawal of proceedings, as such if something contrary to law is done, the person, who has done so, is liable to be proceeded against. 29. Arguments addressed on behalf of the learned counsel appearing in support of petitions, inter alia, are that the NRO, 2007 be declared ultra vires the Constitution, void ab initio and non-est. During the course of arguments, they persuaded the Court to test the constitutionality of the NRO, 2007 in view of provisions of the Constitution 30. The learned Acting Attorney General for Pakistan, counsel for the Federation and the NAB as well as Advocates General of Punjab, Sindh, Balochistan & NWFP, Const.P.76/2007, etc. 51 did not oppose the petitions and consistently reiterated the stand that they were not supporting the NRO, 2007. 31. It is a settled practice of the Courts that legal proceedings are not undertaken merely for academic purposes unless there are admitted or proven facts to resolve the controversy. As it has been pointed out hereinabove that till 12th October, 2007, when the petitions were filed, presumably, the benefit of the NRO, 2007 was not extended to any of the parties. Therefore, learned Prosecutor General, NAB and the Provincial Governments through their Advocates General were called upon to place on record accurate information of the accused persons, who had drawn benefit under Sections 2, 6 and 7 of the NRO, 2007. In response to Court’s order, learned Advocate General Sindh placed on record the list of the persons, whose criminal cases falling under Sections 302, 307, 324, 365, 381, 381-A PPC, Section 16 of Offences of Zina (Enforcement of Hadood) Ordinance, 1979 and Section 14, 17(3) and 20 of Offences Against Property (Enforcement of Had) Ordinance, 1979, etc. were withdrawn. According to him more than 3000 criminal cases were withdrawn under Section 494 Cr.P.C. providing the benefit of Section 2 of the NRO, 2007 to approximately 8000 accused persons involved in above said heinous crimes. The statement of facts also showed the manner in which Const.P.76/2007, etc. 52 these cases were withdrawn. Similarly, the NAB through its Prosecutor General and Additional Prosecutor General also placed on record the list of beneficiaries (accused), who derived benefit under Sections 6 and 7 of the NRO, 2007. As per the list, 248 persons were extended benefit of the NRO, 2007 and the cases or proceedings pending against them, within and outside the country, were withdrawn or terminated. The authenticity of such details furnished by the NAB was required to be verified from them but unfortunately accurate list or details of the cases registered within and outside the country under the NAO, 1999, despite repeated directions of the Court, were not furnished. However, the Chairman and others brought on record the material, on the basis of which, cases on the basis of requests for mutual assistance and civil party to proceedings on request of Federal Government were withdrawn on the request of the then Attorney General for Pakistan. It is pertinent to mention here that the material information regarding the fact that the Ministry of Law & Justice, on the request of one of the Advocates of a beneficiary, had not conceded for issuance of directions for withdrawal of such cases, was withheld by them. More so, the Secretary General and Military Secretary of the President as well as Secretary to President (public side) also appeared on Court’s call and Const.P.76/2007, etc. 53 when asked, placed on record their written statements, mentioning therein that no file, regarding permission to withdraw such cases and proceedings, was available in the office of the President. 32. It is to be observed that except in the Province of Sindh, in all other Provinces, no accused or convict has been extended the benefit of Section 2 of the NRO, 2007, therefore, learned Advocates General were quite comfortable in making statements in this regard. However, in the list furnished by the NAB, there were names of persons belonging to various Provinces, who had been extended the benefit of Sections 6 & 7 of the NRO, 2007. 33. Before dilating upon the respective arguments of the petitioners’ counsel, we consider it appropriate to mention here that while hearing Sindh High Court Bar Association's case (PLD 2009 SC 879), which has been decided on 31st July, 2009, detailed reasons of which were released later, a fourteen member Bench of this Court, when confronted with the proposition i.e. ‘whether the Court, itself, can give decision that as the permanency attached to temporary legislation i.e. an Ordinance, through unconstitutional provision of Article 270AAA of the Constitution, should examine itself or the matter should be left for the Parliament to examine them’; there was no Const.P.76/2007, etc. 54 difficulty in declaring that Ordinance would stand repealed at the expiration of four months and three months, under Articles 89 and 128 of the Constitution, as the case may be. Prima facie, there was no justification for placing such legislations before the Parliament but on having taken into consideration the principle of trichotomy of powers, coupled with the fact that on the basis of bona fide apprehension, all the Ordinances, issued during the period, when the emergency was imposed in the country, commencing from 3rd November, 2007 up to 15th December, 2007, and all those temporary legislations, which were in force on 15th December 2007, were not placed before the Parliament, after attaining perpetuity through Article 270AAA of the Constitution, because such Ordinances had conferred rights and obligations upon the parties; therefore, it was considered appropriate to strengthen the Parliament, by sending these Ordinances for making them the Acts of the Parliament with retrospective effect, so the benefit derived by the masses, could also be protected. Relevant paras from the Sindh High Court Bar Association's case (PLD 2009 SC 879) have already been reproduced hereinabove. This is a fact that National Assembly, having 342 Members, who represent the nation, did not agree to make the NRO, 2007 as an Act of the Parliament, with retrospective effect, and ultimately it was Const.P.76/2007, etc. 55 withdrawn from the Assembly vide letter dated 7th December, 2009. Contents of the said letter are reproduced hereinbelow for convenience:- “In continuation of this Secretariat’s D.O. letter of even number, dated the 7th December, 2009 on the above subject, it is to state that report of the Standing Committee on National Reconciliation Ordinance, 2007 was finalized but before its approval by the Chairperson of the Committee, the Minister concerned had withdrawn the Bill under Rule 139 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 with the consent of the Honorable Speaker. 2. The minutes of the meeting of the Committee and draft report are submitted herewith.” We must mention here that this Court cherishes the democratic system and the will of the electorate. It also wants the Federation to remain strong and stable. 34. Admittedly, as it has been discussed hereinabove that, neither the Federation of Pakistan nor the Provincial Governments have defended the NRO, 2007 before this Court. It is also to be borne in mind that Constitution envisages the trichotomy of powers amongst three organs of the State, namely the legislature, executive and the judiciary. The legislature is assigned the task of law making, the executive to execute such law and the judiciary to interpret the laws. None of the organs of the State can encroach upon Const.P.76/2007, etc. 56 the field of the others. [State v. Ziaur Rahman (PLD 1973 SC 49), Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151), Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341), Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426), Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504), Syed Zafar Ali Shah v. General Pervez Musharrf (PLD 2000 SC 869), Nazar Abbas Jaffri v. Secy: Government of the Punjab (2006 SCMR 606), Sindh High Court Bar Association's case (PLD 2009 SC 879), Smt. Indra Nehru Ghani v. Raj Narain (AIR 1975 SC 2299) and Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789)]. 35. Necessary inference can be drawn that the National Assembly and the Senate (the Parliament), which were required to approve or otherwise the NRO, 2007, and the same was sent along with other Ordinances to them, to make it an Act of the Parliament, with retrospective effect, did not consider it to be a valid temporary legislation, being an Ordinance promulgated under Article 89 of the Constitution on 5th October 2007. 36. Another factual aspect, relevant for disposal of these petitions and examination of the constitutionality of the NRO, 2007 pertains to the date of its promulgation i.e. 5th Const.P.76/2007, etc. 57 October, 2007, which seems to be the result of a deal between the representatives of a political party and the then President /Chief of Army Staff, General Pervez Musharraf, who was about to contest election for another term, in uniform, for the office of the President, as it is apparent from uncontroverted news, appeared in Daily Dawn dated 5th October, 2007 (Friday), referred to by Mr. Abdul Hafeez Pirzada, Sr. ASC, which reads as under:- 37. Mr. Abdul Hafeez Pirzada, Sr. ASC also referred to the book “Reconciliation: Islam, Democracy and the West” by late Mohtarma Benazir Bhutto, and read its Const.P.76/2007, etc. 58 different pages to substantiate the authenticity of the above news item. Similarly, Mr. A.K. Dogar, learned Sr. ASC also referred to the book “The Way of the World” by Ron Suskind and read its different pages to establish that the NRO, 2007 was nothing but the result of a deal between the two individuals. 38. It is equally important to note that candidature of General Pervez Musharraf, to contest the election for the office of the President, in uniform, was challenged before this Court, by invoking jurisdiction under Article 184(3) of the Constitution, in the case of Jamat-e-Islami v. Federation of Pakistan (PLD 2009 SC 549), when a nine member Bench, disposed of the same as per majority view of 6 to 3, wherein, as per the majority view, petitions were held not maintainable within the contemplation of Article 184(3) of the Constitution, whereas, as per the minority view of three Hon’ble Judges of this Court namely Mr. Justice Rana Bhagwandas (as he then was), Mr. Justice Sardar Muhammad Raza Khan and Mr. Justice Mian Shakirullah Jan, all the petitions were held maintainable under Article 184(3) of the Constitution and were accepted. Against the acceptance of nomination papers of the General Pervez Musharraf by Election Commission of Pakistan, another Petition under Const.P.76/2007, etc. 59 Article 184(3) of the Constitution was filed by Justice (R) Wajih-ud-Din Ahmed, being Constitution Petition No.73 of 2007. However, this petition was under consideration before eleven members Bench, when, on 3rd November, 2007, emergency was proclaimed in the country, which now has been declared unconstitutional, illegal, mala fide and void ab initio vide judgment dated 31st July 2009 in Sindh High Court Bar Association's case (PLD 2009 SC 879). 39. There is another principle of law, which casts duty upon this Court to the effect that it should normally lean in favour of constitutionality of a statute and efforts should be made to save the same instead of destroying it. This principle of law has been discussed by this Court on a number of occasions. Reference in this behalf may be made to the cases of Abdul Aziz v. Province of West Pakistan (PLD 1958 SC 499), Province of East Pakistan v. Siraj-ul-Haq Patwari (PLD 1966 SC 854), Inam-ur-Rehman v. Federation of Pakistan (1992 SCMR 563), Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66), Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423), Tariq Nawaz v. Government of Pakistan (2000 SCMR 1956), Asif Islam v. Muhammad Asif (PLD 2001 SC 499) and Federation of Pakistan v. Muhammad Sadiq (PLD 2007 SC 133). This Const.P.76/2007, etc. 60 principle has been appropriately dealt with in the case of Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582) in the following terms:- “that the law should be saved rather then be destroyed and the Court must lean in favour of upholding the constitutionality of legislation, keeping in view that the rules of constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments unless ex facie it is violative of a constitutional provision.” 40. M/s Salman Akram Raja, ASC, Abdul Hafeez Pirzada, Sr. ASC, A.K. Dogar, Sr. ASC and M. Sardar Khan, Sr. ASC (Amicus Curiae) explained the objects and the purposes of the ‘national reconciliation’ in the name of which the NRO, 2007 was promulgated. According to them, the NRO, 2007 would have been a valid legislation, had it promoted the national reconciliation in the country, but unfortunately it was the result of a deal between two persons for their personal objectives. Inasmuch, the persons representing the people of Pakistan, at that time, in the Parliament, were not made aware of it, as it was enacted on 5th October, 2007, through an Ordinance, issued under Article 89 of the Constitution, which is a temporary legislation, instead of enacting it through the Act of Parliament. They Const.P.76/2007, etc. 61 further stated that the NRO, 2007 is a power sharing deal between the then President and the head of a political party. This fact is evident from the contents of the two books; first is “Reconciliation: Islam, Democracy and the West” by late Mohtarma Benazir Bhutto and second is “The Way of the World” by Ron Suskind. Mr. M. Sardar Khan, learned Amicus Curiae has gone to the extent that the object of this law, for all intents and purposes, does not seem to be reconciliation but to pave the way and facilitate the persons, charged for corruption and corrupt practices, plundering of national wealth and commission of fraud, to come back, to seize and occupy the echelons of power again and to legalize corruption and crimes committed by those in power in past. 41. Mr. Abdul Hafeez Pirzada, Sr. ASC relied upon the proceedings of the National Assembly available in the shape of collection under the heading “Constitution Making in Pakistan” and contended that the Constituent Assembly, at the time of framing the Constitution of Pakistan, 1973, had taken all possible measures, to ensure that, on the basis of participation of the chosen representatives from all over the country, the document i.e. the Constitution, should be promulgated with national reconciliation. He further contended that in South Africa through promulgation of Const.P.76/2007, etc. 62 “Promotion of National Unity and Reconciliation Act, 1995, a historic bridge was provided between the past of a deeply divided society, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence for all South Africans, irrespective of color, race, etc. He further stated that although in the NRO, 2007 the word ‘national reconciliation’ has been borrowed from the history but it has nothing to do with the national reconciliation. 42. As it has been noted hereinabove that the NRO, 2007 was promulgated, reportedly, as a result of deal, as is too evident from the contents of the newspaper ‘Daily Dawn’ dated 5th October, 2007, which has already been referred to hereinabove and the said report so published in this newspaper, has not, so far, been contradicted. It is well settled by the time that, in forming the opinion, generally, as to the prevailing state of affairs, having bearing on the issue involved in a case, reports of the relevant period, from electronic and print media, can be taken into consideration. In this behalf we are fortified with the judgments in Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), Raja Muhammad Afzal v. Ch. Muhammad Iltaf Hussain (1986 SCMR 1736), Benazir Bhutto v. Federation of Pakistan Const.P.76/2007, etc. 63 (PLD 1988 SC 416), Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473), Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), Benazir Bhutto v. President of Pakistan (PLD 2000 SC 77), Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2004 Lahore 130, Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583), Watan Party v. Federation of Pakistan (PLD 2006 SC 697) and Sindh High Court Bar Association's case (PLD 2009 SC 879). 43. We are conscious that non-denial of a solitary newspaper report, or even more reports for that matter, may not, in appropriate cases, form the basis of an opinion, one way or the other, therefore, we rely upon the written word of the late Mohtarma Benazir Bhutto herself. That will have more authenticity. 44. Relevant extract from the book “Reconciliation: Islam, Democracy and the West” by late Mohtarma Benazir Bhutto, as relied upon by M/s Abdul Hafeez Pirzada and A.K. Dogar, Sr. ASC are also reproduced hereinbelow for ready reference:- “In August I called PPP leaders to New York. There we discussed giving General Musharraf a “nonpaper” of what we expected. Makhdoom Amin Fahim gave the “nonpaper” to General Musharraf on August 18. The “nonpaper” said that unless there Const.P.76/2007, etc. 64 was movement, by the end of August both sides would be free to go their own ways. General Musharraf and I had a long conversation over the phone that night. He said he would send a team to see me at the end of August. The August team met me in London at my flat in Queens Gate. They discussed a whole new constitutional package. We increased the political price for the new package. They said they would come back in two days. They didn’t. As the deadline approached for calling off talks, I got a call that the deadline would be extended. It was, but there was silence from the Musharraf camp. The PPP and I met in London in September, and I announced that the date of my return to Pakistan would be given on September 14, 2007 from all the capitals and regions of Pakistan. I wanted the date announced from my homeland. The talks with Musharraf remained erratic. He didn’t want us resigning from the assemblies when he sought reelection. There wouldn’t be much difference in his winning whether we boycotted or contested, but we used this to press him to retire as army chief. He cited judicial difficulties. It was a harrowing period. After many, many late-night calls, he passed a National Reconciliation Order, rather than lift the ban on a twice-elected prime minister seeking office a third time, which he said he would do later. In exchange for the NRO, we reciprocated by not resigning from the assemblies, although we did not vote for him. We knew the matter still had to be decided by the Supreme Court. We thought Musharraf took the wrong decision to seek reelection from the existing Const.P.76/2007, etc. 65 Parliament, that it would only compound the crisis. But he had made his choice.” 45. It appears from the above extract of the book, itself, of late Mohtarma Benazir Bhutto that the NRO, 2007 was designed to benefit a certain class of individuals against whom cases were registered between 1st January, 1986 to 12th October, 1999 subject to the scheme laid down therein. Thus we, prima facie, hold that the NRO, 2007 was not promulgated for achieving the object of national reconciliation as according to its substantive provision i.e. Section 2, it was meant to extend benefit to the accused persons, against whom cases were registered between 1st January, 1986 to 12th October, 1999, subject to the scheme laid down therein. Likewise, under Section 7 of the NRO, 2007, the cases against ‘holders of public office’, involved in the offences, inside and outside the country, deemed to have been withdrawn, including the proceedings, initiated under Section 33 of the NAO, 1999 outside the country, through request for mutual assistance and civil party to proceedings, by the Federal Government, before the 12th October, 1999. These two provisions, abundantly, make it clear that the NRO, 2007 has extended benefit only to the criminals, involved in the minor or heinous crimes and ‘holders of public office’ involved in corruption and corrupt practices, as Const.P.76/2007, etc. 66 such it cannot be considered to be a legislation for achieving the object of national reconciliation. 46. We have yet to see a law pari materia with the NRO, 2007 according to which an accused, who being ‘holder of public office’, indulged into corruption and corrupt practices, plundering and looting of national wealth, etc., has been extended the benefit of withdrawal of his cases from the Court of competent jurisdiction. In order to understand the word ‘reconciliation’ reference may be made to ‘Black’s Law Dictionary’ wherein it has been defined as ‘restoration of harmony between persons or things that had been in conflict’. Likewise in ‘Corpus Juris Secundum’ the word ‘reconciliation’ has been defined as ‘the renewal of amicable relations between two persons who had been at enmity or variance usually implying forgiveness of injuries on one or both sides; it is treated, with respect to divorce’. The word ‘reconciliation’ has been defined in ‘Advanced Law Lexicon’ 2005 Ed. as ‘the restoration to friendship and harmony; renewal of amicable relations between two person having been in conflict; literally the restoration of friendly relations after an estrangement’. As it has been argued by Mr. Abdul Hafeez Pirzada, Sr. ASC that when the word ‘national’ is prefixed with the word ‘reconciliation’, its meaning changes absolutely from its Const.P.76/2007, etc. 67 ordinary dictionary meanings, and ‘national reconciliation’ means ‘the reconciliation of the entire nation’. Therefore, keeping in view the fact, noted hereinabove, that the NRO, 2007 was the result of deal between two individuals for their personal objectives, coupled with its dictionary meaning, it cannot be called ‘national reconciliation’. 47. Mian Allah Nawaz, learned Sr. ASC has also placed on record the thesis by Barrister Saifullah Ghouri on ‘The Acquiescence of UK Courts to Foreign Legislation in Particular the NRO’, in which, he while discussing the NRO, 2007, has made the reference to ‘National Commission for Forced Disappearance’ in Argentina; ‘Indian Residential Schools Trust and Reconciliation Commission’ in Canada; ‘National Truth & Reconciliation Commission’ and ‘National Commission on Political Imprisonment & Torture’ in Chile; ‘United Nations Truth Commission’ in El. Salvador; ‘Reconciliation & Unity Commission’ in Fiji; ‘Truth & Reconciliation Commission’ in South Africa; ‘Truth & Reconciliation Commission’ in South Korea; ‘Greensboro Truth & Reconciliation Commission’ and ‘Joshua Micah Marshall’ in USA; etc. Interestingly, none of these commissions have dealt with the financial and ordinary crimes but amazingly the NRO, 2007 is the only law, wherein Const.P.76/2007, etc. 68 cases pertaining to ordinary and financial crimes, committed by the accused and ‘holders of public office’, who indulged themselves into corruption and corrupt practices, have been declared to be withdrawn or terminated. 48. For the foregoing reasons, we are of the opinion that the NRO, 2007 was not promulgated for ‘national reconciliation’ but for achieving the objectives, which absolutely have no nexus with the ‘national reconciliation’ because the nation of Pakistan, as a whole, has not derived any benefit from the same. Contrary to it, it has been promulgated for achieving the individuals’ reconciliation, explained before this Court with the help of admitted evidence, noted hereinabove. 49. Learned counsel appearing for the petitioners stated that the NRO, 2007 has violated the provisions of Articles 4, 8, 25, 62(f), 63(1)(p), 89, 175 and 227 of the Constitution, therefore, it may be declared void ab initio with all consequences, likely to flow after declaring it so. 50. There is no cavil with the proposition that Article 8 of the Constitution provides that any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void; and the State shall not make Const.P.76/2007, etc. 69 any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. Needless to observe that Article 8 of the Constitution is covered under Chapter I of the Constitution, which deals with fundamental rights. Article 25 of the Constitution, being one of the important Articles of the Constitution, professes that all citizens are equal before law and are entitled to equal protection of law. 51. At this stage, reference to Article 4 of the Constitution is also necessary, which deals in respect of the rights of individuals to be dealt with in accordance with law. This Article of the Constitution is not placed in the Chapter of fundamental rights, perhaps on account of its implications, as is evident from the language employed therein; namely, to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be and of every other person for the time being within Pakistan. So, a uniform protection of law, being an inalienable right of every citizen and the person, who is, for the time being within Pakistan, has been provided under this Article. Nexus of Article 4 of the Constitution can conveniently be made with Article 25 of the Constitution or Const.P.76/2007, etc. 70 any other Article, relating to fundamental rights, including Article 9 of the Constitution. 52. It is important to note that on proclamation of emergency, fundamental rights, guaranteed under Articles 15, 16, 17, 18, 19 & 24, of the Constitution, can be suspended in terms of Article 233 of the Constitution, but during the emergency, the provisions of Article 4 of the Constitution remain operative. The phrase ‘rule of law’ has been used since the time of Aristotle, in the fourth century B.C.; it has meant different things to different authors and theorists; Aristotle’s concept of rule of law is contained in his simple saying: “the rule of law is to be preferred to that of any individual” – In other words, the rule of law is anathema to the rule of men; in the words of the Constitution of the State of Massachusetts, it means “a government of law and not of men”; in brief, it means supremacy of law. [Comparative Constitutional Law by Hamid Khan & Muhammad Waqar Rana (page 48)]. The prominent Jurist A.V. Dicey in his work “Law of the Constitution” said that ‘rule of law’ was one of the main features of the Constitution of United Kingdom. He highlighted the following three distinct concepts:- i) No man is punishable or can be lawfully made to suffer in body or goods except for Const.P.76/2007, etc. 71 a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of restraint. ii) When we speak of the “rule of law” as a characteristic of our country, not only that with us no man is above the law, but (which is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. iii) The general principles of the constitution (as for example the right to personal liberty, or the right to public meeting) are with us as the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution. ……” Elaborating upon the second concept Dicey commented: “with us every official, from the Prime Minister down to constable or a collector of taxes, is under the same Const.P.76/2007, etc. 72 responsibility for every act done without legal justification as any other citizen.” He further wrote on the second concept that “the rule of law” in this sense excludes the idea of any exemption of officials or other from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals……..; the notion which lies at the bottom of the administrative law known to foreign countries is, that affairs or disputes in which the government or its servants are concerned are beyond the sphere of the civil courts and must be dealt with by special and more or less official bodies.” 53. The above concepts of ‘rule of law’ highlighted by A.V. Dicey, have been noted with approval by the eminent Jurists of our country. Reference may be made to the book “Access to Justice in Pakistan” by Justice Fazal Karim. The above concepts have been discussed more elaborately by him in his another book “Judicial Review of Public Actions”. Looking in depth to the concept of “rule of law” one can conveniently follow that:- i) The rule of law excludes arbitrariness; its postulate is ‘intelligence without passion’ and ‘reason freed from desire’; Const.P.76/2007, etc. 73 ii) Wherever we find arbitrariness or unreasonableness there is denial of the rule of law; iii) What is a necessary element of the rule of law is that the law must not be arbitrary or irrational and it must satisfy the test of reason and the democratic form of policy seeks to ensure this element by making the framers of the law accountable to the people. [Bachan Singh v. State of Punjab (AIR 1982 SC 1325)]. Therefore, now we have to consider as to whether a law, which is inconsistent with the fundamental rights, is liable to be declared void to the extent of such inconsistency. Article 13 of the Indian Constitution is pari materia to Article 8 of the Constitution of Pakistan and according to the former, “all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void”. This Article is covered by Part-III of the Indian Constitution, which deals with the fundamental rights. More so, Article 14 of the Indian Constitution deals with one of the fundamental rights i.e. ‘equality before the law’, whereas in our Constitution, Article 25 deals with the said subject. Const.P.76/2007, etc. 74 54. As far as jurisdiction of this Court to examine the constitutionality of a law is concerned, there is no dispute either. Sub-Article (1) of Article 8 of the Constitution uses the word ‘inconsistent’ purposely, regarding any law which was promulgated in the past or is in existence presently. Whereas, sub-Article 2 of Article 8 of the Constitution debars the State not to make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. Same is the position in the Indian Constitution, as it has been noted hereinabove. So, inconsistency or contravention of a law passed, or the existing law, shall be examined to the extent of violation of fundamental rights and such laws are not void for other purposes. 55. As far as the term ‘void’ is concerned, it has been defined in Black’s Law Dictionary, 7th Edn. (1999), as “of no legal effect; null.” Corpus Juris Scecundum, Vol.92 at pp 1021 to 1022 defines ‘void” as follows:- “The word ‘void’ may be used in what is variously referred to as its literal, absolute, primary, precise, strict, and strictly accurate sense, and in this sense it means absolutely null; null and incapable of confirmation or ratification; of no effect and incapable of confirmation; of no force and effect; having no legal force or binding effect, having no legal or binding force; incapable of Const.P.76/2007, etc. 75 being enforced by law; of no legal force or effect whatever; that which has no force and effect; without legal efficacy, without vitality or legal effect; ineffectual; nugatory; unable in law to support the purpose for which it was intended”. (emphasis added). 56. The expression ‘void’ has also been commented upon in Province of East Pakistan v. M.D. Mehdi Ali Khan (PLD 1959 SC 387), Syed Abul A’la Maudoodi v. Government of West Pakistan (PLD 1964 SC 673), Bhikaji Narain v. State of M.P. (AIR 1955 SC 781). This Court in Haji Rehmdil v. Province of Balochistan (1999 SCMR 1060) defines that “term "void" signifies something absolutely null, incapable of ratification or confirmation and, thus, having no legal effect whatsoever”. Similarly, the word ‘void ab initio’ has been defined in Black’s Law Dictionary, 7th Edn. (1999) as “null from the beginning”. 57. However, the powers of this Court to examine the constitutionality of a law have been discussed in number of judgments at number of times. Reference in this behalf may be made to Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457 at 596), Benazir Bhutto’s case (PLD 1988 SC 416 at 485), Azizullah Memon’s case (PLD 1993 SC 341 at 354), Government of NWFP v. Muhammad Irshad (PLD 1995 SC 281 at 296), Civil Aviation Authority v. Union of Const.P.76/2007, etc. 76 Civil Aviation Employees (PLD 1997 SC 781 at 796), Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263 at 1313 & 1357), Wattan Party v. Federation of Pakistan (PLD 2006 SC 697 at 731) and Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642 at 671, 675, 676). 58. It is important to note that as per the command of Article 4 of the Constitution all the citizens without any discrimination shall be dealt with in accordance with law, so enforcement of the law leaves no room for creating any distinction between the citizens, except a particular class, on the basis of intelligible differentia. The principle challenge to the NRO, 2007, is of its being discriminatory in nature. It is the case of the petitioners’ that the NRO, 2007, being violative of Article 25 of the Constitution, deserves to be declared void ab initio, non est, thus never took birth, therefore, nothing, which is the product of the NRO, 2007 or done in pursuance of it or under it, ever came into existence or survive. It is also contended that the NRO, 2007 is void because it is a fraud on the Constitution. According to the learned counsel for the petitioners, the NRO, 2007 has violated the dictum laid down by this Court in Mahmood Khan Achakzai’s case (PLD 1997 SC 426) improved upon in Syed Zafar Ali Shah’s case (PLD Const.P.76/2007, etc. 77 2000 SC 869), wherein, after a great deal of efforts, the Court eventually came to treat Article 4 of the Constitution as ‘due process clause’. So far as the provision of Article 25 of the Constitution is concerned, it has been discussed time and again by this Court in a good number of cases, reference to which may not be necessary, except the one i.e. Azizullah Memon’s case (PLD 1993 SC 341), wherein inconsistency of the provisions of Criminal Law (Special Provisions) Ordinance, 1968 were examined on the touchstone of Articles 8 and 25 of the Constitution, and ultimately appellant’s (Government of Balochistan) appeal was dismissed, declaring the Criminal Law (Special Provisions) Ordinance, 1968, to be void being inconsistent with the fundamental rights enshrined in Article 25 of the Constitution. In this judgment, with regard to ‘reasonable classification’, following two principles have been highlighted:- “in order to make a classification reasonable, it should be based:- a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; b) that the differentia must have rational nexus to the object sought to be achieved by such classification.” Const.P.76/2007, etc. 78 As far as ‘intelligible differentia’ is concerned, it distinguishes persons or things from the other persons or things, who have been left out. The Indian Supreme Court, while relying upon the statement of Professor Willis in Charanjit Lal v. Union of India (AIR 1951 SC 41), observed that “any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed”. Same principle has been highlighted in Shazia Batool v. Government of Balochistan (2007 SCMR 410). 59. Thus, keeping in view the above principles and the definition of classification “intelligible differentia” means, in the case of the law differentiating between two sets of the people or objects, all such differentiations should be easily understood as logical and lucid and it should not be artificial or contrived. 60. It may be noted that the NRO, 2007 has extended benefit to three categories of persons in the following manner:- 1) By virtue of amendment of Section 494 Cr.P.C. the cases of accused persons, including the absconding accused, involved in criminal cases, for political reasons or through political Const.P.76/2007, etc. 79 victimization, initiated between 1st January, 1986 to 12th October, 1999 including those against whom, judgments have been pronounced by the Trial Court, were to be withdrawn. 2) By adding clause (aa) in Section 31A of the NAO, 1999, it is declared that an order and judgment passed by the Court in absentia against an accused is void ab initio and shall not be acted upon. 3) By inserting Section 33F in the NAO, 1999, the proceedings under investigation or cases pending in any Court including a High Court and the Supreme Court of Pakistan, initiated by or on a reference by the NAB, inside and outside Pakistan, including the proceedings initiated under Section 33 (ibid) by making requests for mutual assistance and civil party to proceedings, by the Federal Government, before the 12th day of October, 1999, against ‘holders of public office’ stood withdrawn and terminated and such ‘holders of public office’ shall also not be liable for any action in future as well under this Ordinance for acts having been done in good faith before the said date. 61. Now the constitutionality of amended Section 494 Cr. P.C. (Act V of 1898) by means of Section 2 of the NRO, Const.P.76/2007, etc. 80 2007 shall be examined. It would be appropriate to reproduce Section 494 Cr.P.C in its original form hereinbelow:- “494. Effect of withdrawal from prosecution. Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried, and upon such withdrawal: (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences. In above provision, emphasis is upon “effect of withdrawal from the prosecution with the consent of the Court”. A plain reading of above provision categorically provides for an important role of the Court as without its consent, no effect of withdrawal from prosecution shall take place. In Saad Shibli v. State (PLD 1981 SC 617), it has been observed as follows:- “It follows therefore, that on disclosure of satisfactory objective grounds, relatable to public policy, or public peace, and administration of justice, an application under Section 494 Cr.P.C., for seeking Court’s permission to withdraw from the prosecution can be filed. The Court’s duty is Const.P.76/2007, etc. 81 to ensure that such a course “is not an attempt to interfere with the normal course of justice for illegitimate reason or purposes”– AIR 1957 SC 389 or that Courts “own functioning is not thereby pre-empted”– PLD 1977 SC 451.” To extend the benefit of the NRO, 2007 following amendment was made in Section 494 Cr.P.C. which is reproduced hereinbelow:- “2. Amendment of section 494, Act V of 1898. In the Code of Criminal Procedure, 1898 (Act V of 1898), section 494 shall be renumbered as sub-section (1) thereof and after sub-section (1) renumbered as aforesaid, the following sub-section (2) and (3) shall be added, namely: “(2) Notwithstanding anything to the contrary in sub-section(1), the federal government or a provincial government may, before the judgment is pronounced by a Trial Court, withdraw from the prosecution of any person including an absconding accused who is found to be falsely involved for political reasons or through political victimization in any case initiated between 1st day of January, 1986 to 12th day of October, 1999 and upon such withdrawal clause (a) and clause (b) of sub- section (1) shall apply. (3) For the purposes of exercise of powers under sub-section (2) the federal government and the provincial government may each constitute a review board to review the entire record of the case and furnish recommendations as to their withdrawal or otherwise. (4) The review board in case of Federal Government shall be headed by a retired judge of the Supreme Court with Attorney-General and Federal Law Secretary as its members and in case of Provincial Government it shall be headed by a retired judge of the high court with Const.P.76/2007, etc. 82 Advocate-General and/or Prosecutor-General and Provincial Law Secretary as its members. (5) A review board undertaking review of a case may direct the public prosecutor or any other concerned authority to furnish to it the record of the case.” A cursory glance on amended Section 494 Cr.P.C. leads to conclude that powers of the Court under Section 494 (1) Cr.P.C were conferred upon the Review Board, to be constituted by the Federal Government and the Provincial Government, composition of which has been provided under sub-Section (4) of Section 494 Cr.P.C. In simple words consent of the Court has been replaced with the recommendations of the Review Board i.e. an executive body, for all intent and purposes. The Review Board on whose recommendations, all the cases, in which judgment has not been pronounced by the Trial Court, are to be withdrawn from the prosecution, including the cases of absconding accused, who were found to be falsely involved for the political reasons or political victimization. Essentially, declaring a person absconder is the job of the Trial Court, after submission of challan and observing codal formalities under Sections 87 and 88 Cr.P.C. As far as involving a person falsely for political reasons or through political victimization, is concerned, it is a question which could only be examined by the Court of law, before whom challan has been submitted Const.P.76/2007, etc. 83 because once a challan is filed, the accused can be discharged or acquitted under Cr.P.C., if there is no evidence against the accused, as the case may be, or by applying for quashment of the case under Section 561-A Cr.P.C. or approaching the Revisional Court for terminating the proceedings, if the same are not founded on correct disclosure of information for involvement of the accused. However, as far as absconding accused is concerned, prima facie, he is considered to be fugitive from law. Therefore, without surrendering to the Court, legally no concession can be extended to him by the executive authority. Surprisingly, action initiated under the NRO, 2007 in terms of above provision is tantamount, in clear terms, to deny the independence of judiciary, which is hallmark and also one of the salient features of the Constitution, as it has been held in Syed Zafar Ali Shah’s case (PLD 2000 SC 869). Relevant paras therefrom are reproduced hereinbelow for convenience:- “We are of the considered view that if the Parliament cannot alter the basic features of the Constitution, as held by this Court in Achakzai's case (supra), power to amend the Constitution cannot be conferred on the Chief Executive of the measure larger than that which could be exercised by the Parliament. Clearly, unbridled powers to amend the Constitution cannot be given to the Chief Executive even during the transitional period even on the touchstone of `State Const.P.76/2007, etc. 84 necessity'. We have stated in unambiguous terms in the Short Order that the Constitution of Pakistan is the supreme law of the land and its basic features i.e independence of Judiciary, federalism and parliamentary form of government blended with Islamic Provision cannot be altered even by the Parliament. Resultantly, the power of the Chief Executive to amend the Constitution is strictly circumscribed by the limitations laid down in the Short Order vide sub-paragraphs (i) to (vii) of paragraph 6.” It may be noted that as far as independence of Judiciary is concerned its security has been provided by the Constitution itself in Article 2A of the Constitution but the principle and concept of the same shall be discussed after examining the constitutionality of various provisions of the NRO, 2007 including the one which is under discussion. 62. In order to decide the issue of withdrawal of criminal cases, registered against the accused persons, during the specific period, commencing from 1st January, 1986 to 12th October, 1999, Mr. Yousaf Leghari, Advocate General Sindh was called upon to place on record the details of all cases. However, except furnishing one list of the cases, he could not handover the list of all other cases, which according to his statement, noted by this Court vide order dated 14th December 2009, is to the effect that the Department has not Const.P.76/2007, etc. 85 been able to get a detailed list/ names of absconders, whose cases were recommended by the Review Board and thereafter withdrawn under amended Section 494 Cr.P.C. In respect of other Provinces, neither any benefit of the NRO, 2007 was extended to any of the accused, nor was any Provincial Review Board constituted, as submitted by the Advocates General of the respective Provinces. However, a perusal of the material so furnished by the Advocate General Sindh, reveals that Provincial Review Board constituted under the above provision of amended Section 494 Cr.P.C., examined criminal cases on 9th October 2007 and has drawn the conclusion on the same day that after having gone through the available record and bearing in mind the provisions contained in the amended Section 494 Cr.P.C. the Board is of unanimous view that all the cases were falsely registered and for political reasons, therefore, it would be futile exercise to keep them pending particularly when most of the cases are very old and there is hardly any cogent evidence to connect the accused with the alleged offences, as none of them would result in conviction, if tried by the respective Courts, as such, notwithstanding the fact that any one of the accused has been declared absconder, the Board recommended the Provincial Government that those cases may be withdrawn forthwith. Exact figure of such cases has Const.P.76/2007, etc. 86 not been brought on record but as per verbal statement of the learned Advocate General Sindh, there were more than three thousand cases which have been withdrawn, in which about eight thousand accused were involved. We fail to understand whether hundreds of cases can be decided within few hours, for the purpose of making recommendations by the Provincial Review Board. Therefore, inference would be that just to fulfill the formality, meeting of the Board was convened in order to get recommendations for the withdrawal of cases. The list so made available by the learned Advocate General Sindh indicates that the cases including the criminal cases, involving murder, attempt to murder, dacoity, kidnapping for ransom, robbery, gunrunning, theft, extortion, etc. have been recommended by the Board for withdrawal forthwith. Needless to observe that after the amendment in PPC, in pursuance of judgment of this Court in Federation of Pakistan v. Gul Hassan Khan (PLD 1989 SC 633), the cases pertaining to Qisas, Diyat, Arsh, etc. were not allowed to be compounded without the permission of the victim or the heirs of deceased and even if such permission is sought by entering into compromise, under Chapter XVI of the PPC, no withdrawal or compromise of such cases is permissible in non- compoundable cases. Interestingly, in the list, submitted by Const.P.76/2007, etc. 87 the learned Advocate General Sindh, there are cases, relating to offences, which are non-compoundable and even the Court of law, before whom matter is subjudice, is not empowered to make recommendations for withdrawal of the same or allowed to enter into compromise. Admittedly, the victim or heirs of the deceased, in body-hurt cases, covered by Chapter XVI PPC, had an inalienable right to be heard by a Court of law, as sometimes permission is accorded by the Court to compound the offence, subject to payment of Diyat, Daman, Arsh, etc., as the case may be. But by substituting the Court with the Review Board, mandatory procedure of law has been compromised. At this juncture, reference to the following para from the Hakim Khan v. Govt. of Pakistan (PLD 1992 SC 595) would not be out of context:- 19. As regards the merits of the question involved in the case, the punishments of death awarded were not by way of Qisas. The sentences of death awarded were under Ta'zir. Just as a sentence of Ta'zir is imposed on State's command and not as a right of the individual under God's law, the State as represented by the President, has and continues to have in respect of Ta'zir punishments, the right of commutation, remission etc. As per the above principle of law, no question of pardon arises if the punishment of Qisas has been awarded. However, in respect of Ta’zir, the President continues to Const.P.76/2007, etc. 88 enjoy the power to grant pardon. It is further observed that in terms of Articles 45 and 2A of the Constitution, the Court has no power to apply the test of repugnancy by invoking Article 2A of the Constitution for striking down Article 45 of the Constitution. This principle has been highlighted by the seven member bench of this Court in the case of Abdul Malik v. The State (PLD 2006 SC 365). Relevant para therefrom is reproduced hereinbelow for convenience:- 23. It was argued that the power enshrined in the afore- referred Article is violative of the spirit of Article 2A of the Constitution. Any theological debate in this context is unnecessary as Article 2A is not a self-executing provision and unless there is proper legislation or amendment in the Constitution, the provision as it stands has to be given effect to. The power of the President to grant pardon, reprieve or respite and to remit or suspend commute any sentence is a power which is given to Heads of the States in most of the Constitutions of the world. The import and ambit of this provision were considered by this Court in Bhai Khan v. State PLD 1992 SC 14 wherein at page 25, it was held as under: - "The exercise of the discretion by the President under Article 45 is to meet at the highest level the requirements of justice and clemency, to afford relief against undue harshness, or serious mistake or miscarriage in the judicial process, apart from specific or special cases where relief is by way of grace alone, as for instance to celebrate an event or when a new President or Prime Minister is installed, where relief or clemency is for the honour of the State. In the former case, the discretion has to be exercised with care, keeping Const.P.76/2007, etc. 89 in mind the duty to maintain justice, so as to prevent the erosion of the deterrent effect that judicial punishment must retain. The scope of the power of the President under Article 45 is basically discretionary, in view of Article 48(2) of the Constitution. The power under Article 45 being at the apex and unfettered, the President, whilst commuting a sentence (on a number of counts) or different sentences, can order the commuted sentences to run concurrently inter se and/or concurrently with any other or others imposed by the Court." 63. No assertion could be made by either of the parties about the punishment to an accused, whose case has been withdrawn despite likelihood of his getting punishment under Qisas or Ta’zir. The Court, trying an accused for a particular crime, based on a particular charge, prayed against him by the prosecution, has no reasons to enter into discussion whether on account of political victimization, he has been involved in the case or otherwise; because the Court is required to decide the case on merits, in exercise of its jurisdiction, following the consistent principles of administration of justice in criminal cases that if no case is made out on merits, it is free to discharge or acquit the accused without waiting for conclusion of the trial. 64. The amendment in Section 494 Cr.P.C. has not only undermined the independence of judiciary by substituting the Court, before whom the trial of an accused was pending, with the Review Board, but, at the same time, Const.P.76/2007, etc. 90 had also created discrimination with the accused, who were facing trial prior to 1st January, 1986 or had been charged for the offence after 12th October, 1999. The preamble of the NRO, 2007 coupled with any of its substantive part, had not disclosed the reasons, calling for so called ‘national reconciliation’ in between this period, presuming that an accused, facing charge entailing major penalty of death, is not entitled for discharge, by means of extra judicial forum, or for the same treatment, if he has committed the crime after 13th October, 1999, and up till now. We have posed a question to ourselves i.e. whether there had been no political victimization after 12th October, 1999 uptill now, on account of which accused persons were involved falsely in the commission of the offence but we could not succeed in getting the answer of the same except observing that specific dates were incorporated in the NRO, 2007 for achieving specific object as well as the specific purpose, which has been highlighted by one of the learned counsel, whose argument in this behalf has been noted hereinabove. 65. Somehow, the Indian Supreme Court had to face with identical situation in Rajender Kumar v. State (AIR 1980 SC 1510). As per the facts of the case, the Government of India, in exercise of powers conferred by Section 196(1)(a) of Const.P.76/2007, etc. 91 the Code of Criminal Procedure 1973, and Section 7 of the Explosive Substances Act, 1908, by its order dated 6th September, 1976 accorded sanction for the prosecution of George Mathew Fernandes alias George Fernandes, Chairman of Socialist Party of India and Chairman of All India Railwaymen's Federation and 24 others, for alleged offences under Sections 121-A & 120-B of Indian Penal Code, read with Sections 4, 5 and 6 of Explosive Substances Act, 1908 and Sections 5(3)(b) and 12 of the Indian Explosives Act, 1884, on the allegations that after the issuance of the proclamation of Emergency on 25th June, 1975 by the President of India in exercise of the powers conferred by clause (1) of Article 352 of the Constitution, George Mathew, sought to arouse resistance against the said emergency by declaring that the said emergency had been "clamped" on the country by the "despotic rule" of Smt. Indira Gandhi, Prime Minister of India and to entertain an idea that a conspiracy be hatched with the help of the persons of his confidence, to over-awe the Government and in pursuance of the conspiracy do such acts which might result in the destruction of public property and vital installations in the country. On 24th September, 1976 the Deputy Superintendent of Police, Special Police Establishment Central Bureau of Investigation, filed a charge-sheet in the Court of the Chief Metropolitan Const.P.76/2007, etc. 92 Magistrate, Delhi, against the said accused persons for the offences mentioned in the order sanctioning the prosecution. Besides the accused, who were sent up for trial, two accused, namely, Shri Bharat C. Patel and Rewati Kant Sinha were granted pardon by the Court and were examined as approver under Section 306(4) Cr.P.C., notwithstanding the fact that the case was exclusively triable by the Court of Session. Out of 25, two accused namely Ladli Mohan Nigam and Atul Patel were declared proclaimed offenders by the Court. At that stage, on March 26, 1977, N. S. Mathur, Special Public Prosecutor filed an application under section 321 of the Criminal Procedure Code 1973, for permission to withdraw from the prosecution. On the same day the Chief Metropolitan Magistrate, expressed the opinion that it was "expedient to accord consent to withdraw from the prosecution", granted his consent for withdrawal from the prosecution. One Dr. Rajender Kumar Jain, an Advocate, filed a petition in the High Court of Delhi, under Section 397 of the Criminal Procedure Code for revision of the order of the Chief Metropolitan Magistrate giving his consent to the Special Public Prosecutor to withdraw from the prosecution, but the same was dismissed on the ground that the applicant had no locus standi. Dr. Rajender Kumar Jain filed appeal before the Supreme Court of India, after obtaining special Const.P.76/2007, etc. 93 leave from the Court, mainly on the ground that the Public Prosecutor had abdicated his function and had filed the application at the behest of the Central Government without applying his mind, and that S. N. Mathur who had filed the application for withdrawal from the prosecution was not the Public Prosecutor, in-charge of the case and the application was therefore, incompetent. The Supreme Court, ultimately, while dismissing the petitions for leave to appeal, concluded as under:- 25. Before bidding farewell to these cases it may be appropriate for us to say that Criminal justice is not a plaything and a Criminal Court is not a play-ground for politicking. Political fervour should not convert prosecution into persecution, nor political favour reward wrongdoer by withdrawal from prosecution. If political fortunes are allowed to be reflected in the processes of the Court very soon the credibility of the rule of law will be lost. So we insist that Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should appraise himself from the Government and thereafter appraise the Court the host of factors relevant to the question of withdrawal from the cases. But under no circumstances should he allow himself to become anyone's stooge. Const.P.76/2007, etc. 94 The provision of Section 2 of the NRO, 2007, is also contrary to the dictum laid down in Saad Shibli’s case (PLD 1981 SC 617), wherein it has been held as under:- 13. A bare reading of this section discloses that the statute conferring the power of withdrawal on the Public Prosecutor prescribes no guidelines and indicates no controlling features, except that such a power can be exercised before the judgment is pronounced and is subject to "consent of the Court". From such a general dispensation certain consequences necessarily follow. In the first place, the power conferred is of the widest amptitude but not so wide as to amount to a fiat or ipsi dixit of the Public Prosecutor. Such a limitation necessarily follows the requirement of "consent of the Court." It has been held that "where Court's permission is sought or required, such a motion seeks the active exercise of the sound judicial discretion of the Court" (22 A C J S 7). Judicial discretion of the Court is required to be exercised according to reasonably well settled principles, which are capable of being formulated and applied as standards by higher Courts when entertaining appeals against the manner in which they have been exercised. In this sense, therefore, "judicial" refers to the exercise of discretion in accordance with "objective" standards as opposed to subjective considerations of policy and expediency." 66. Above discussion, in the light of the facts disclosed by the learned Advocate General Sindh, persuades us to hold that the classification amongst the accused persons, facing trial during the specific period i.e. 1st January Const.P.76/2007, etc. 95 1986 to 12th October 1999, is based on arbitrariness and no reasons have been disclosed in the NRO, 2007 for entering into so called ‘reconciliation’ with particular group of accused persons, except in the name of ‘national reconciliation’ on the pretext that the cases were politically motivated against them. Therefore, the NRO, 2007 to the extent of discussion on Section 2, is arbitrary and irrational as it has failed the test of reason to conclude in its favour that it is not a bad law. Similarly on the basis of intelligible differentia for reasonable classification, the differentiation has not been understood logically and it seems that for specific purpose, an artificial grouping was made, causing injustice to the accused persons, who were placed in the same position and instead of achieving the ‘national reconciliation’ the NRO, 2007 had served the purpose of ‘individual reconciliation’. 67. It has been argued by one of the learned counsel i.e. Mr. Abdul Hafeez Pirzada, Sr. ASC that by means of Section 6 of the NRO, 2007, a new provision i.e. (aa) has been added in Section 31A of the NAO, 1999 and stated that this provision is contrary to Article 63(1)(p) of the Constitution, for the reason that if ‘holder of public office’ is an absconder, in view of conviction recorded against him in absentia under Const.P.76/2007, etc. 96 Section 31A of the NAO, 1999, such ‘holder of public office’ is not competent to sit in the Parliament on the basis of his conviction as well as morality. Therefore, by promulgation of Section 6 of the NRO, 2007, conscience of the Constitution has been divorced. Reliance in this behalf has been placed by him upon Jamal Shah v. Election Commission (PLD 1966 SC 1) and Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416). On the Court’s question, he replied that if Section 6 of the NRO, 2007 is declared void for these two reasons, then the convicts must surrender before the will of the Constitution. He added that this is the mandate of the Constitution. According to him if Article 63(1)(p) of the Constitution could not be considered to be self-executory then no other provision of the law could be so dealt with. 68. It would be advantageous to reproduce hereinbelow Section 31A of the NAO, 1999:- “31A. Absconding to avoid service of warrants Whoever absconds in order to avoid being served with any process issued by any Court or any other authority or officer under this Ordinance or in any manner prevents, avoids or evades the service on himself of such process or conceals himself to screen himself from the proceedings or punishment under this Ordinance shall be guilty of an offence punishable with imprisonment which may extend to three years notwithstanding the provisions of section 87 and 88 of Const.P.76/2007, etc. 97 Code of Criminal Procedure, 1898, or any other law for the time being in force.” The above Section has been amended by means of Section 6 of the NRO, 2007, which reads as under:- “6. Amendment of section 31A, Ordinance XVIII of 1999. In the said Ordinance, in section 31A, in clause (a), for the full stop at the end a colon shall be substituted and thereafter the following new clause (aa) shall be inserted, namely:- “(aa) An order or judgment passed by the Court in absentia against an accused is void ab initio and shall not be acted upon.” As far as Article 63(1)(p) of the Constitution, referred to by the learned counsel, relating to disqualification for becoming the member of the Parliament, is concerned, it provides 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 has been convicted and sentenced to imprisonment for having absconded by a competent Court under any law for the time being in force. On Court’s query, NAB has provided the list of the persons, convicted under Section 31A of the NAO, 1999 because we wanted to ascertain whether there is any case of convict/absconder who has been extended benefit of this provision. In view of available material, it was considered appropriate to examine Const.P.76/2007, etc. 98 the constitutionality/ vires of this provision of the NRO, 2007 as well. 69. It is important to note that this Court has earlier granted relief to the convicts under Section 31A; firstly in an unreported judgment in Gulzaman Kasi v. The State (Criminal Appeal No. 269 of 2003), wherein allegation against the appellant was that he in his capacity as the Minister for Development Government of Balochistan/ Chairman, Quetta Development Authority, in connivance with Mr. Abdus-Saleem Durrani, Director General, converted a plot meant for school/play ground, into six residential plots and allotted the same to their close relatives and associates and thereby committed offence under Section 9(b) of the NAO, 1999. The learned Bench of three Hon’ble Judges of this Court, has held that the impugned conviction of the appellant cannot be sustained for two reasons; firstly that trial in absentia has been declared violative of Article 9 of the Constitution in Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445); and secondly appellant was subsequently arrested in the matter and was tried on the allegations which form subject matter of the reference, in which he was convicted in absentia; his appeal was dismissed by High Court of Balochistan and his Criminal Petition No. 68-Q of 2003 is pending decision before this Court and would be Const.P.76/2007, etc. 99 decided along with this appeal; therefore, the convict was released. 70. It is to be noted that this case is distinguishable from the case relating to disqualification of a person being elected as a member of the Parliament, or from being a member of the Parliament, because the question as to whether he has been rightly convicted in absentia or otherwise, is to be decided by the Court of law and the powers of the Court could not be substituted or conferred according to Section 6 of the NRO, 2007 on the legislature to declare that an order or judgment passed by a Court of competent jurisdiction in absentia is void ab initio and shall not be acted upon. It may also be kept in mind that; firstly Section 6 of the NRO, 2007 is general in its nature and benefit of the same can be derived by a candidate for becoming the member of the Parliament, or a member of the Parliament, or by other ordinary person; secondly, it has not been made applicable for a specific period. Therefore, if it being an amended provision continued to remain intact for all the times to come, conviction in absentia under Section 31A of the NAO, 1999 shall be void and for all practical purposes Section 31A of the NAO, 1999 shall be deemed to have been annulled. Before proceeding further, it is necessary to answer that the observation made in Mehram Ali’s case (PLD 1998 Const.P.76/2007, etc. 100 SC 1445) and in Gulzaman Kasi’s case (Criminal Appeal No. 269 of 2003) could have not been made in view of the distinctive facts, namely, in the said case Court was authorized to remove the accused from the Court on his misbehaviour and in his absence the trial was concluded and he was sentenced to death, therefore, it was considered violation of Article 9 of the Constitution. Be that as it may, Hon’ble same Judge of this Court i.e. Mr. Justice Tassaduq Hussain Jillani, in his subsequent judgment in the case of Manzoor Qayyum v. The State (PLD 2006 SC 343) has held as follows :- “6. The question whether the petitioner had absconded, "in order to avoid being served with any process issued by any Court or any other authority or officer under this Ordinance" would be a question of fact to , be decided by the Trial Court in the light of the material brought before it. The reference by learned counsel for the petitioner to a judgment of the Karachi High Court, Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889 may not be relevant at this stage before this Court. It rather contains instructive guidelines for a Trial Court seized of a case under section 31-A of the NAB Ordinance. In the said case, the learned Karachi High Court delved at length on the scope of the afore- referred section, the nature of evidence the prosecution has to produce to prove the avoidance of service of notice or of execution of warrants particularly when an accused allegedly leaves the Const.P.76/2007, etc. 101 country. But having observed all this, the Court directed the appellant to appear before the Trial Court "as and when required by the said Courts for further proceedings in accordance with law". In the case of N.M.V. Vellayappa Chettiar v. Alagappa Chettiar AIR (29) 1942 Madras 289, a trial Magistrate had issued warrants of attachment and proclamation on account of non-appearance of the accused and the same were set aside by the High Court but the main complaint pending before the said Magistrate was not interfered with. The High Court held as under:- "It is obvious that when the Magistrate was informed that the petitioner had already left India, the orders for attachment and proclamation are without jurisdiction, unless he was satisfied that the accused was willfully absconding, knowing of the warrant. He could not have known of the warrant which was issued after he had left India. When it was clear that the accused had left India in March, it could not possibly be said that he absconded or that he is concealing himself so that the warrant cannot be executed, which is a condition precedent under S.87, Criminal P.C. for the issue of a proclamation. It is also a condition precedent for the issue of attachment under S.88. It was at first said that the petitioner was still in India and that he is concealing himself somewhere in India. If this is so, the action of the Magistrate would be perfectly justified. I asked the complainant whether he would state so in an 'affidavit, and I gave him an opportunity of stating it in an affidavit. In the affidavit filed by him he has not contradicted the statement made on behalf of the petitioner that he left India in March. Under these circumstances, I hold that the orders of proclamation and attachment are without jurisdiction and as such they are set aside." 7. In the instant case as well, the learned High Court while setting aside the conviction under section 31-A of NAB Ordinance, left the matter to Trial Court to Const.P.76/2007, etc. 102 decide it afresh. The precise question which the learned Trial Court would be seized of now is whether the allegation of absconsion or avoidance of service of the process of the Trial Court is borne out from the record or material placed before it or not. This Court would not pre-empt the function of the Trial Court. In these circumstances, the judgment of the learned High Court is unexceptionable. However, the petitioner would be within his right to move an application under section 265-K, Cr.P.C. and if such an application is moved, the learned Trial Court shall decide the same on merit with independent application of mind within 15 days of its presentation as assured by learned Deputy Prosecutor General of NAB.” 71. On having gone through the above judgment, it is crystal clear that offence falling within the mischief of Section 31A of the NAO, 1999 is distinct offence, from the allegations made in the reference, which was filed against an accused and if the convict has been acquitted in the reference or the reference has been withdrawn, even then the conviction under Section 31A of the NAO, 1999 remain operative and the convict has to avail remedy, for getting it set aside, by approaching the next higher judicial forum, as envisaged under Section 32 of the NAO, 1999. 72. As discussed above, conviction in absentia is a final order, therefore, no other forum can declare such Const.P.76/2007, etc. 103 conviction as void, except a judicial forum, that too, by filing an appeal. But in instant case, as it has been pointed out hereinabove, by amending a law, such conviction has been declared void, therefore, the amendment in Section 31A of the NAO, 1999 by inserting clause (aa), by means of Section 6 of the NRO, 2007, is declared void being against the provisions of Section 31A read with Section 32 of the NAO, 1999, which provides remedy to the convict to file appeal. 73. There is another judgment in the case of The State v. Aftab Ahmed Khan Sherpao (PLD 2005 SC 399), in which appeal filed by the State against the acquittal of the respondent, has been dismissed, inter alia, for the reason that the respondent convict under Section 31A of the NAO, 1999, voluntarily surrendered himself before the High Court, where appeal against his conviction was pending; he was acquitted of the charge under Section 31A by the High Court, which was considered to be unexceptional and the State appeal was dismissed. This Court in another judgment in State v. Naseem-ur-Rehman (2004 SCMR 1943) in respect of the respondent, convicted under Section 31A of the NAO, 1999 observed that it was obligatory upon the convict to approach the Court; first of all he should surrender to the order of his imprisonment, meaning thereby that on Const.P.76/2007, etc. 104 surrendering before the Court he should be taken into custody and the Court might order for his release in appeal and if such person is not taken into custody or not admitted to bail, then he will be deemed to be fugitive from law and would not be entitled to any relief. 74. The above discussion poses another important question, namely, whether the legislature by means of an enactment can undo the effect of the judgment in which the person has been convicted for an offence and if he is ‘holder of public office’, his such conviction is a disqualification to be elected as a member of the Parliament, or to be a member of the Parliament, under Article 63(1)(p) of the Constitution? In this behalf the simple answer would be that with reference to a person, who intended to become the member of the Parliament, or is a member of the Parliament, no legislation is possible to grant him relief in presence of the provisions of the Constitution, being a parent law. It is well settled by the time that no legislation on any subject is permissible which is against the specific provision of the Constitution. In this behalf we are fortified with the judgment in Wattan Party v. Federation of Pakistan (PLD 2006 SC 697), wherein it has been held as under:- “……………… Besides it is an accepted principle of the Constitutional jurisprudence that a Constitution being a Const.P.76/2007, etc. 105 basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared un-Constitutional. This is not for the first time that a law like Ordinance 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void and of no legal effect. ……………………. (emphasis provided). 75. It is also important to note that this law has opened the door of the Parliament, for the persons, convicted in absentia, as the disqualification for a person to become a member of Parliament and for a member of Parliament under Article 63(1)(p) of the Constitution has been removed by means of clause (aa) inserted in Section 31A of the NAO, 1999, a person, who has been convicted under Section 31A of the NAO, 1999, in absentia, with a stigma of a convict, has been made qualified to enter into the Parliament, contrary to the Constitutional provisions as well as law laid down in the case of Abdul Baqi v. Muhammad Akram (PLD 2003 SC 163). 76. As far as nullifying the effect of a judgment by means of a legislation is concerned, there are certain limitations including the one i.e. by amending the law with Const.P.76/2007, etc. 106 retrospective effect, on the basis of which the order or judgment has been passed, thereby removing the basis of the decision. Reference in this behalf can be made to Tofazzal Hossain v. Province of East Pakistan (PLD 1963 SC 251), Tirath Ram Rajindra Nath v. State of U.P. (AIR 1973 SC 405), Mamukanjan Cotton Factory v. Punjab Province (PLD 1975 SC 50) and Misrilal Jain v. State of Orissa (AIR 1977 SC 1686). However, in the case of I.N. Saksena v. State of Madhya Pradesh (AIR 1976 SC 2250), following principle has been laid down:- “Firstly, whether the legislature possesses competence over the subject matter, and, secondly, whether by validation the legislature has removed the defect which the courts had found in the previous law. To these we may add a third. Whether it is consistent with the provisions of Part III of the Constitution. It is to be noted that the NAB has placed on record the material pointing out the names of the beneficiaries, who have derived benefit under Section 6 of the NRO, 2007 but applying the test laid down hereinabove, we can safely conclude that the insertion of clause (aa) in Section 31A of the NAO, 1999 is without lawful authority, as it has not amended the original Section 31A of the NAO, 1999, which is still intact with all its consequences and effects. It is pertinent to mention here that the language used in an enactment must Const.P.76/2007, etc. 107 show the intention of the lawgiver that it would apply with retrospective effect and shall be deemed always to have been so inserted in the respective statute. In this behalf reference may be made to Fecto Belarus Tractor v. Government of Pakistan (PLD 2005 SC 605). Relevant para therefrom is reproduced hereinbelow for convenience:- 54. Besides, the language used in both the Ordinances manifests clear intention of the law giver that it would apply with retrospective effect and shall be deemed always to have been so inserted in respective statutes. Identical language was used in section 5 of the Finance Act 1988 in pursuance whereof section 31-A was inserted in the Customs Act,1969 with retrospective effect. This Court had occasion to examine this provision of law in Molasses Trading and Export (ibid). Relevant paras, therefrom read as under:- “……..Before considering this question it would be appropriate to make certain general observations with regard to the power of validation possessed by the legislature in the domain of taxing statutes. It has been held that when a legislature intends to validate a tax declared by a Court to be illegally collected under an invalid law, the cause for ineffectiveness or invalidity must be removed before the validation can be said to have taken place effectively. It will not be sufficient merely to pronounce in the statute by means of a non obstante clause that the decision of the Court shall not bind the authorities, because that will amount to reversing a judicial decision rendered in exercise of the judicial power which is not within the domain of the legislature. It is therefore necessary that the conditions on which the decision of the Court intended to be avoided is based, must be altered so fundamentally, that the decision would not any longer be applicable to the altered circumstances. One of the accepted modes of Const.P.76/2007, etc. 108 achieving this object by the legislature is to re- enact retrospectively a valid and legal taxing provision, and adopting the fiction to make the tax already collected to stand under the re- enacted law. The legislature can even give its own meaning and interpretation of the law under which the tax was collected and by “legislative fait” make the new meaning binding upon Courts. It is in one of these ways that the legislature can neutralize the effect of the earlier decision of the Court. The legislature has, within the bounds of the Constitutional limitations, the power to make such a law and give it retrospective effect so as to bind even past transactions. In ultimate analysis, therefore, the primary test of validating piece of legislation is whether the new provision removes the defect which the Court had found in the existing law and whether adequate provisions in the validating law for a valid imposition of tax were made………………………………………………… ……… it is clear from the provisions of section 5 of the Finance Act, 1988 that by the device of the deeming clause the newly-inserted section 31-A is to be treated as part and parcel of the Act since its enforcement in 1969. Undoubtedly, therefore, the section is retrospective in operation. It is agreed on all hands that the well-settled principles of interpretation of statutes are that vested rights cannot be taken away save by express words or necessary intendment. It also cannot be disputed that the legislature, which is competent to make a law, has full plenary powers within its sphere of operation to legislate retrospectively or retroactively. Therefore, vested rights can be taken away by such a legislation and it cannot be struck down on that grounds. However, it has also been laid down in Province of East Pakistan v. Sharafatullah PLD 1970 SC 514 that A statute cannot be read in such a way as to change accrued rights, the title to which consists in transactions past and closed or any facts or events that have already occurred. In that case that following postulation has been made:- “In other words liabilities that are fixed or rights that have been obtained by the operation of law upon facts or events for or perhaps it should be said against which the existing law provided are not to be disturbed by a general law governing Const.P.76/2007, etc. 109 future rights and liabilities unless the law so intends.” This is an important principle which has to be kept in mind in the context of the present case. Reference may also be made to another principle followed is several decisions but to quote from Mehreen Zaibun Nisa v. Land Commissioner, Multan (PLD 1975 SC 397) where it was observed: “When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. The classic statement as to the effect of a deeming clause is to be found in the observations of Lord Asquith in East End Dwelling Company Ltd. V. Finsbury Borough Council (1952)AC 109) namely:- ‘Where the statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” However, in that case aforesaid principle was subjected in its application to a given case to condition that the Court has to determine the limits within which and the purposes for which the legislature has created the fiction. It has been quoted from an English decision that “When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.” 77. The examination of the above principle abundantly makes it clear that since the basis of the judgment, in respect of conviction in absentia under Section Const.P.76/2007, etc. 110 31A of the NAO, 1999, has not been removed, pointing out any defect in the same by the legislature, therefore, the legislature, by means of an enactment, could not give a judgment that conviction in absentia was void ab initio, rather for the purpose of declaring such judgments void ab initio, it was incumbent upon the legislature to have repealed Section 31A of the NAO, 1999 because on the basis of the same the absconder accused were convicted. More so, to nullify the effect of a judgment, by means of a legislative enactment, we have to examine the nature of each judgment separately and individually but in instance case omni bus type order has been passed, declaring all the judgments recorded under Section 31A of the NAO, 1999 as void ab initio, without pointing out any defect in the same. Under the civil administration of justice, plethora of case law is available on the point that how an effect of a judgment can be nullified or neutralized, particularly the judgment in which, on the basis of existing laws, the Courts have come to the conclusion that the tax was not recoverable but the Government by issuing a legislation, with retrospective effect, has removed the defect in the law, thereby nullified the effect of the judgment, as a result whereof the Government continued to effect the recovery of tax. This is in respect of the civil matters, but in the criminal administration of justice we have not succeeded Const.P.76/2007, etc. 111 in laying hand on such identical principles, applied in civil cases, on the point, therefore, we have to rely upon Treaties on the Constitutional Limitation by Thomas M. Cooley, wherein it has been held as follows:- “If the legislature would prescribe a different rule for the future from that which the courts enforce, it must be done by statute, and cannot be done by a mandate to the courts, which leaves the law unchanged, but seeks to compel the courts to construe and apply it not according to the judicial, but according to the legislative judgment. But in any case the substance of the legislative action should be regarded rather than the form; and if it appears to be the intention to establish by declaratory statute a rule of conduct for the future, the courts should accept and act upon it, without too nicely inquiring whether the mode by which the new rule is established is the best, most decorous and suitable that could have been adopted or not. If the legislature cannot thus indirectly control the action of the courts, by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry.” 78. However, in respect of criminal cases, this issue has to be approached differently than the matters relating to civil disputes, payment of taxes, etc. The legislative authority, Const.P.76/2007, etc. 112 ordinarily is not required to enter into the domain of judiciary. It has been noted, time and again, that under the scheme of the Constitution, the judiciary has an independent role, amongst three organs of the State, as it has been held in Mahmood Khan Achakzai’s case (PLD 1997 SC 426), Mehram Ali’s case (PLD 1998 SC 1445), Liaquat Hussain’s case (PLD 1999 SC 504) and Syed Zafar Ali Shah’s case (PLD 2000 SC 869). Relevant extracts from the last mentioned judgment are reproduced hereinbelow for convenience:- “210. The independence of Judiciary is a basic principle of the constitutional system of governance in Pakistan. The Constitution of Pakistan contains specific and categorical provisions for the independence of Judiciary. The Preamble and Article 2A state that "the independence of Judiciary shall be fully secured"; and with a view to achieve this objective, Article 175 provides that "the Judiciary shall be separated progressively from the executive". The rulings of the Supreme Court in the cases of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105, Al-Jehad Trust (supra) and Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161), indeed, clarified the constitutional provisions and thereby further strengthened the principle of the independence of Judiciary, by providing for the separation of Judiciary from the executive, clarifying the qualifications for appointment of Judges of the High Courts, prescribing the procedure and the time frame for appointment of Judges, appointment of Chief Justices and the transfer of a Judge from a High Court to Const.P.76/2007, etc. 113 the Federal Shariat Court. Furthermore, the Supreme Court judgments in the cases of Mehram Ali and Liaquat Hussain (supra) are also in line with the above rulings, in as much as, they elaborated and reiterated the principle of judicial independence and the separation of Judiciary from the executive. 211. In a system of constitutional governance, guaranteeing Fundamental Rights, and based on principle of trichotomy of powers, such as ours, the Judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between State and citizens or citizens' inter se. The Judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society. 212. The Constitution makes it the exclusive power/ responsibility of the Judiciary to ensure the sustenance of system of "separation of powers" based on checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals. To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially. It is such an efficient and independent Judiciary which can foster an appropriate legal and judicial environment where there is peace and security in the society, safety of life, protection of property and guarantee of essential Const.P.76/2007, etc. 114 human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of cast; creed, colour, culture, gender or place of origin, etc. It is indeed such a legal and judicial environment, which is conducive to economic growth and social development.” The above principle has been reiterated in Sindh High Court Bar Association's case (PLD 2009 SC 879), with approval. 79. Undoubtedly, the legislative authority has to perform those functions, which have been recognized by the Constitution. There is no such provision on the basis of which a judgment can be annulled, except in civil cases, that too, subject to following the principles laid down hereinabove. As far as matters relating to criminal administration of justice are concerned, where a judgment has been announced on the basis of law, the legislative authority cannot annul such judgment without pointing out any flaw in the law, which is the basis of such a judgment; as in the instant case, no amendment has been made in the original text of Section 31A of the NAO, 1999, therefore, it would lead us to the conclusion that the judgment pronounced under the law, by a Court of competent jurisdiction, is a judgment which has been pronounced legally, according to the mandate, conferred upon the Court and such judgment or order cannot be annulled by means of Const.P.76/2007, etc. 115 an enactment. It is well settled principle of law that upon feeling aggrieved by any judgment pronounced in the criminal administration of justice, the aggrieved person has been provided with the remedies to invoke the jurisdiction of the higher Courts, within the hierarchy. Similarly, in the case in hand, if a person is aggrieved by an order of conviction/sentence recorded against him under Section 31A of the NAO, 1999, he has remedy under Section 32 of the NAO, 1999 to file an appeal before the High Court. 80. As it has been noted hereinabove that if the legislative authority is not aggrieved, in any manner, by the judgment pronounced by the Courts discharging its functions under Section 31A of the NAO, 1999, the said judgment could only be set aside, varied, suspended as per the procedure laid down in the NAO, 1999 and not by enforcing or adopting legislative measures. In this behalf, this Court, in Abdul Kabir v. State (PLD 1990 SC 823), has highlighted this aspect, in the following manner:- “……………… A conviction is complete as soon as the person charged has been found guilty by a Court of competent jurisdiction. During the pendency of an appeal, appellate Court may suspend the sentence under section 426, Cr.P.C. So execution of sentence of petitioner is suspended and not his conviction which remains operative till it is set aside by the higher Const.P.76/2007, etc. 116 appellate Courts. Pendency of the appeal for decision does not ipso facto mean that the conviction is wiped out. The appellate Court has no authority under section 426 to suspend the conviction. Conviction and sentence connote two different terms. Conviction means proving or finding guilty. Sentence is punishment awarded to a person convicted in criminal trial. Conviction is followed by sentence. It cannot be accepted as principle of law that till matter is finally disposed of by Supreme Court against convicted person, the conviction would be considered as held in abeyance. This interpretation is not in consonance with the spirit of law and against logical coherence. The suspension of sentence is only a concession to an accused under section 426, Cr.P.C. but it does not mean that the conviction is erased. Therefore, in view of the fourth proviso, the third proviso to section 497(1), Cr.P.C. is not attracted to the case of the petitioner.” In the case in hand, without any reasonable justification, both, the conviction and the sentence, have been declared void, by adding clause (aa) in Section 31A of the NAO, 1999, which definitely is against the norms and the principles of justice. 81. The legislature is competent to legislate but without encroaching upon the jurisdiction of the judiciary. If, it is presumed that the insertion of clause (aa) in Section 31A of the NAO, 1999, by means of Section 6 of the NRO, 2007, is constitutionally valid even then it would be tantamount to Const.P.76/2007, etc. 117 allow the legislature to pronounce a judicial verdict against an order or judgment of a competent Court of law, declaring the same to be void ab initio. Therefore, following the doctrine of trichotomy of powers, the action of the legislative authority, whereby clause (aa) has been inserted in Section 31A of the NAO, 1999, by means of the NRO, 2007, would be considered to be a step to substitute the judicial forum with an executive authority. Thus, it would not be sustainable being contrary to the principle of independence of judiciary, as mentioned in Article 2A of the Constitution, which provides that independence of judiciary shall be fully secured read with Article 175 of the Constitution, which lays down a scheme for the establishment of the Courts, including the superior Courts and such other Courts as may be established by law. In the case in hand, except an appeal under Section 32 of the NAO, 1999 to the High Court of the Province, no other remedy is available to a convict against his conviction/sentence, to get it set aside. For convenience, Section 32 of the NAO, 1999 is reproduced hereinbelow:- 32. Appeal [and revision]: (a) Any person convicted or the Prosecutor General Accountability, if so directed by Chairman NAB, aggrieved by the final judgement and order of the Court under this Ordinance may, within ten days of the final judgement and order of the Court prefer an appeal to the High Court of the Province where the Court is situated: Const.P.76/2007, etc. 118 Provided that no appeal shall lie against any interlocutory order of the Court. (b) All Appeals against the final judgement and Order filed before the High Court will be heard by a Bench of not less than two judges constituted by the Chief Justice of the High Court and shall be finally disposed of within thirty days of the filing of the Appeal. (c) No revision shall lie against any interlocutory order of the Court. Thus, no other forum including the legislature is empowered to declare an order or judgment, whereby conviction has been recorded under Section 31A of the NAO, 1999, to be void ab initio except in civil cases pertaining to the tax matters, etc., as discussed above. As far as Articles 2A and 175 of the Constitution are concerned, they furnish guarantee for securing the independence of judiciary. This is not the only case in which we are confronted with such situation. Right from the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) to Mehram Ali’s case (PLD 1998 SC 1445), followed by in Liaquat Hussain’s case (PLD 1999 SC 504), this Court has always interpreted Article 175 of the Constitution read with one of the items of the Objective Resolution, which has been enshrined in Article 2A of the Constitution, guaranteeing independence of judiciary. The observations made above are not in derogation to the powers of the Parliament. There may indeed be cases in which Parliament may, by appropriate Const.P.76/2007, etc. 119 legislation, and by manifestation of appropriate intent and use of language, be competent to nullify the effect of a judgment in the given circumstances of the case. This, however, is not such a case as an unspecified number of convictions, on differing facts and evidence, are sought to be set aside in one swipe. This is going beyond legislative competence and Parliament itself wisely decided not to intervene to make permanent a temporary law (Ordinance) by enacting as an Act of Parliament. We are only endorsing the will of the elected representatives in following their intent. 82. It may also be noted that Article 203 of the Constitution is also another important provision of the Constitution which provides that each High Court shall supervise and control all Courts subordinate to it. In this context following para from the Mehram Ali’s case (PLD 1998 SC 1445), being advantageous is reproduced hereinbelow:- “11. From the above case-law the following legal position obtaining in Pakistan emerges:- (i) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e. the Supreme Court, a High Court for each Province and such other Courts as may be established by law. (ii) That the words “such other Courts as may be established by law” employed in clause (1) of Article 175 of the Constitution are relatable to the Const.P.76/2007, etc. 120 subordinate Courts referred to in Article 203 thereof. (iii) That our Constitution recognizes only such specific Tribunal to share judicial powers with the above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution. (iv) That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vest in High Courts, which is exclusive in nature, comprehensive in extent and effective in operation. (v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution. (vi) That the right of “access to justice to all” is a fundamental right, which right cannot be exercised in the absence of an independent judiciary providing impartial, fair and just adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals which are manned and run by executive authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution. (vii) That the independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the security of their tenure and other terms and conditions.” Const.P.76/2007, etc. 121 83. It is to be borne in mind that as per the dictum, laid down hereinabove, the intervention by the executive, contrary to the principles of independence of judiciary, has been declared unconstitutional. Reference in this behalf, if needed, may be made to short order in Mehram Ali’s case (PLD 1998 SC 1445) dated 15th May 1998, which is reproduced hereinbelow for ready reference:- "For the reasons to be recorded later on, we dispose of the above cases as under:- (i) Section 5(2)(i) is held to be invalid to the extent it authorises the officer of Police, armed forces and civil armed forces charged with the duty of preventing terrorism, to open fire or order for opening of fire against person who in his opinion in all probability is likely to commit a terrorist act or any scheduled offence, without being fired upon; (ii) section 10 of the Anti-Terrorism Act, 1997, hereinafter referred to as the Act, in its present form is not valid; the same requires to be suitably amended as to provide that before entering upon premises which is suspected to have material or a recording in contravention of section 8 of the Act, the concerned officer of Police, armed forces or civil armed forces shall record in writing his reasons for such belief and serve on the person or premises concerned a copy of such reasons before conducting such search; (iii) section 19(10)(b) of the Act, which provides for trial of an accused in absentia on account of his misbehaviour in the Court, is violative of Article 10 of the Constitution and, therefore, is declared as invalid; (iv) sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the Constitution. They need to be amended as to vest the appellate power in a High Court instead of Const.P.76/2007, etc. 122 Appellate Tribunal and to use the words "High Court" in place of "Appellate Tribunal"; (v) section 26 of the Act is not valid in its present form as it makes admissible the confession recorded by a police officer not below the rank of a Deputy Superintendent of Police as it is violative of Articles 13(b) and 25 of the Constitution and that the same requires to be suitably amended by substituting the words 'by a police officer not below the rank of a Deputy Superintendent of Police' by the words 'Judicial Magistrate'; (vi) that the offences mentioned in the Schedule should have nexus with the objects mentioned in sections 6, 7 and 8 of the Act; (vii) section 35 of the Act in its present form is not valid as it militates against the concept of the independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be suitably amended inasmuch as the power to frame rules is to be vested in the High Court to be notified by the Government; (viii) section 14 of the Act requires to be amended as to provide security of the tenure of the Judges of the Special Courts in consonance with the concept of independence of judiciary.” Subsequent thereto, Article 175 of the Constitution has been interpreted in Liaquat Hussain’s case (PLD 1999 SC 504). As per the facts of this case, petitioner Liaquat Hussain challenged the Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998 promulgated on 20th November, 1998 whereby the civilians were to be tried by the Military Courts for the civil offences, mentioned, inter alia, in the schedule of the Ordinance, on various grounds concerning the jurisdiction of the Courts to discharge judicial Const.P.76/2007, etc. 123 functions. The Court, while taking into consideration the principles highlighted in Mehram Ali’s case (PLD 1998 SC 1445) observed as follows:- “15. The above-quoted extract from the above judgment in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), indicates that it has been inter alia held that our Constitution recognises only such specific Tribunals to share judicial power with the Courts referred to in Articles 175 and 203, which have been specifically provided by the Constitution itself, like Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225) and that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution. Admittedly the Military Courts to be convened under section 3 of the impugned Ordinance do not fall within the category of the Courts referred to in the above Articles. This was even so contended by the learned Attorney-General as reflected from his arguments reproduced hereinabove in para. 11. Neither the above Military Courts nor the personnel to man the same qualify the other requirements spelled out in the case of Mehram Ali reproduced hereinabove in para.14. The question which needs examination is, as to whether by virtue of invocation of Article 245 of the Constitution for calling the Armed Forces to act in aid of civil power, the impugned Ordinance could have been promulgated for convening Military Courts in terms of section 3 thereof. This will, inter alia involve Const.P.76/2007, etc. 124 the determination as to the meaning and import of the expression "The Armed Forces shall………and, subject to law, act in aid of civil power when called upon to do so" used in clause (1) of Article 245 of the Constitution. I may, at this stage, reproduce the above Article 245 of the Constitution, which reads as follows: "245. Functions of Armed Forces.-(1) The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so. (2) The validity of any direction issued by the Federal Government under clause (1), shall not be called in question in any Court. (3) A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245: Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil power. (4) Any proceeding in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil powers and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting." It may be highlighted that the original Article 245 comprised what is now clause (1) thereof. Clauses (2) to (4) were added by the Constitution (Seventh Amendment) Act, 1977 (Act 23 of 1977) with effect from 21st April, 1977. It may be stated that the above-quoted clause (1) imposes two Constitutional duties on the Armed Forces Const.P.76/2007, etc. 125 to be performed upon the direction of the Federal Government: (i) To defend Pakistan against external aggression or threat of war; and (ii) subject to law, act in aid of civil power when called upon to do so. Whereas clause (2) thereof lays down that the validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any Court. It may further be noticed that clause (3) thereof provides that a High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article, but subject to the proviso that the jurisdiction of the High Court is not to be affected in respect of the proceedings pending immediately before the day on which the Armed Forces start acting in aid of civil power. It may also be pointed out that clause (4) thereof lays down that any proceedings in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil powers and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting.” 84. It is worth mentioning that in the above referred case, Military Courts were established to try the civilians to meet the challenge of terrorism, inter alia, for one of the reasons that the cases of terrorists are not being disposed of Const.P.76/2007, etc. 126 expeditiously. This Court declared that the trial of the civilians under the impugned Ordinance, so far as it laid down the establishment of the Military Courts, was unconstitutional. Contents of the operative para from the short order dated 17th February, 1999 are reproduced hereinbelow:- “After hearing the learned counsel for the petitioners, the petitioners in person, the learned Attorney-General for Pakistan and the learned Advocate-General, Sindh, for the reasons to be recorded later, we are of the view that Ordinance No.Xll of 1998 as amended up to date in so far as it allows the establishment of Military Courts for trial of civilians charged with the offences mentioned in section 6 and the Schedule to the above Ordinance is unconstitutional, without lawful authority and of no legal effect and that the cases in which sentences have already been awarded but the same have not yet been executed shall stand set aside and the cases stand transferred to the Anti-Terrorist Courts already in existence or which may hereinafter be created in terms of the guidelines provided hereunder for disposal in accordance with the law. The evidence already recorded in the above cases and the pending cases shall be read as evidence in the cases provided that it shall not affect any of the powers of the Presiding Officer in this regard as is available under the law. The above declaration will not affect the sentences and punishments already awarded and executed and the cases will be treated as past and closed transactions.” Const.P.76/2007, etc. 127 To ensure expeditious disposal of the case, the guidelines have also been provided under para 3, which reads as under:- “3. Since we are seized of these petitions in exercise of our Constitutional jurisdiction under Article 184(3) of the Constitution, we lay down the following guidelines which may contribute towards the achievement of the above objective: (i) Cases relating to terrorism be entrusted to the Special Courts already established or which may be established under the Anti-Terrorism Act, 1997 (hereinafter referred to as A.T.A.) or under any law in terms of the judgment of this Court in the case of Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445); (ii) One case be assigned at a time to a Special Court and till judgment is announced in such case, no other case be entrusted to it: (iii) The concerned Special Court should proceed with the case entrusted to it on day to day basis and pronounce judgment within a period of 7 days as already provided in A.T.A. or as may be provided in any other law: (iv) Challan of a case should be submitted to a Special Court after full preparation and after ensuring that all witnesses will be produced as and when required by the concerned Special Court; (v) An appeal arising out of an order/judgment of the Special Court shall be decided by the appellate forum within a period of 7 days from the filing of such appeal: (vi) Any lapse on the part of the Investigating and Prosecuting Agencies shall entail immediate disciplinary action according to the law applicable; (vii) The Chief Justice of the High Court concerned shall nominate one or more Judges of the High Court for monitoring and ensuring that the cases/appeals are disposed of in terms of these guidelines; Const.P.76/2007, etc. 128 (viii) That the Chief Justice of Pakistan may nominate one or more Judges of the Supreme Court to monitor the implementation of the above guidelines. The Judge or Judges so nominated will also ensure that if any petition for leave/or appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court; (ix) That besides invoking aid of the Armed Forces in terms of sections 4 and 5 of the A.T.A., the assistance of the Armed Forces can be pressed into service by virtue of Article 245 of the Constitution at all stages including the security of the Presiding Officer, Advocates and witnesses appearing in the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence." Inter alia, mechanism was provided for appointment of monitoring teams by the Chief Justice of the High Court concerned, who were required to nominate one or more judges of the High Court for monitoring and ensuring that the cases/appeals shall be disposed of in terms of these guidelines. However, Chief Justice of Pakistan was also allowed to nominate one or more Judges of the Supreme Court to monitor the implementation of the above guidelines and to ensure that if any petition for leave to appeal or any appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court, etc. 85. Essentially, the above guidelines/directions for expeditious disposal of cases were issued by this Court, in exercise of its powers under Article 187 of the Constitution, which provides that Supreme Court shall have power to Const.P.76/2007, etc. 129 issue such directions, orders or decrees, as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document. This Article of the Constitution has been interpreted in so many cases. However, reference is being made only to Sabir Shah’s case (PLD 1995 SC 66). Relevant para therefrom is reproduced hereinbelow for convenience:- “10. The Supreme Court is the apex Court. It is the highest and the ultimate Court under the Constitution. In my view the inherent and plenary power of this Court which is vested in it by virtue of being the ultimate Court, it has the power to do complete justice without in any manner infringing or violating any provision of law. While doing complete justice this Court would not cross the frontiers of the Constitution and law. The term "complete justice" is not capable of definition with exactitude. It is a term covering variety of cases and reliefs which this Court can mould and grant depending upon the facts and circumstances of the case. While doing complete justice formalities and technicalities should not fetter its power. It can grant ancillary relief, mould the relief within its jurisdiction depending on the facts and circumstances of the case, take additional evidence and in appropriate cases even subsequent events may be taken into consideration. Ronald Rotunda in his book "Treatise on Constitutional Case Substance" (Second-Edition), Volume 2 at page 90 has stated that "The Supreme Court is an essence of a continual Constitutional convention". The jurisdiction Const.P.76/2007, etc. 130 and the power conferred on the Supreme Court does empower it to do complete justice by looking to the facts, circumstances and the law governing a particular case. Article 187 does not confer any jurisdiction. It recognises inherent power of an apex Court to do complete justice and issue orders and directions to achieve that end. Inherent justification is vested in the High Court and subordinate Courts while dealing with civil and criminal cases by virtue of provisions of law. The inherent jurisdiction of this Court to do complete justice cannot be curtailed by law as it may adversely affect the independence of judiciary and the fundamental right of person to have free access to the Court for achieving complete justice. This enunciation may evoke a controversy that as Article 175(2) restricts Article 187 it will create conflict between the two. There is no conflict and both the Articles can be read together. The conflict in the provisions of the Constitution should not be assumed and if apparently there seems to be any, it has to be interpreted in a harmonious manner by which both the provisions may co-exist. One provision of the Constitution cannot be struck down being in conflict with the other provision of the Constitution. They have to live together, exist together and operate together. Therefore, while interpreting jurisdiction and power of the superior Courts one should look to the fundamental rights conferred and the duty cast upon them under the Constitution. A provision like Article 187 cannot be read in isolation but has to be interpreted and read harmoniously with other provisions of the Constitution. In my humble view this Court while hearing appeal under a statute has the jurisdiction and power to decide the question of vires of the statute Const.P.76/2007, etc. 131 under which the appeal has arisen and can even invoke Article 184(3) in appropriate cases.” 86. This Court, while hearing the petition under Article 184(3) of the Constitution, enjoys ample powers under Article 8 of the Constitution, to declare any law inconsistent with the fundamental rights conferred by the Constitution or to examine the constitutionality of such law, on the touchstone of any other provision of the Constitution. While exercising its constitutional powers, conferred upon this Court under various provisions of the Constitution, including Articles 184, 185, 187(1) and 212(3), it also enjoys enormous powers of judicial review. Besides, it is well settled by the time that the Apex Court had always been vested with inherent powers to regulate its own authority of judicial review, inasmuch as in Zafar Ali Shah’s case (PLD 2000 SC 869) this Court has elaborately discussed the powers of judicial review, in the following terms:- “216. Judicial power means that the Superior Courts can strike down a law on the touchstone of the Constitution, as this Court did in Mehram Ali's and Sh. Liaquat Hussain's cases. The nature of judicial power and its relationship to jurisdiction are all allied concepts and the same cannot be taken away. The concept of judicial review was laid down in the United States by Chief Justice John Marshal in the case William Marbury v. James Medison (2 Law Ed. 60), ruling that it was Const.P.76/2007, etc. 132 inherent in the nature of judicial power that the Constitution is regarded as the supreme law and any law or act contrary to it or infringing its provisions is to be struck down by the Court in that the duty and function of the Court is to enforce the Constitution. The concept of judicial review did not exist in England because the supreme law in England was that the Queen-in-Parliament can do anything and that once an Act of Parliament has been passed, the Courts were to follow it. The Founding Fathers of the United States Constitution, however, deviated from it and in doing so followed the view expounded by Montesquieu in his treatise "Spirit of Law", which enumerates the concept of Separation of Powers: the judicial, the legislative and the executive powers. Montesquieu based his opinion on the practice but not the law of England, in that, in practice there was Separation of Powers in England but not in theory. Unlike the Constitution of Pakistan, the Constitution of United States does not confer any power on the Supreme Court to strike down laws but the Supreme Court of United States ruled so in the case of William Marbury v. James Medison (supra). 217. …………………………………………………………. 218. …………………………………………………………. 219. While going through the case-law of Great Britain, we came across the view expounded by Chief Justice Coke, whose writings are regarded as an important source of Common Law, to the effect that the Bench should be independent of the Crown and arbiter of the Constitution to decide all disputed questions whereas Bacon took the view that the Court is under the King but then following the Plato's theory he (Bacon) wanted the King to be a philosopher. The evolution of judicial power is co-terminus with the evolution of civilization and this is so because judicial power has to check the arbitrary exercise of powers by any organ or authority. ……..………………………………………………………..” Const.P.76/2007, etc. 133 Similarly in Wattan Party (PLD 2006 SC 697), the power of judicial review of this Court has been discussed in the following terms:- “47. Article 8 of the Constitution grants the power of judicial review of legislation according to which this Court is empowered to declare a law void if it is inconsistent with or in derogation to the fundamental rights. However, at the same time this Court is empowered to declare any legislation contrary to the provisions of Constitution under some of the identical provisions of the Constitution as under Article 143 of the Constitution on having noticed inconsistencies between the Federal and Provincial laws the Court is empowered to declare that which out of the two laws is in accordance with the Constitution. Besides it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared un-Constitutional. This is not for the first time that a law like Ordinance 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void and of no legal effect. Reference may be made to the case of Syed Zafar Ali Shah v. Gen. Pervez Musharaf, Chief Executive of Pakistan (PLD 2000 SC 869) wherein it was held that judicial power means that the superior courts can strike down a law on the touchstone of the Constitution. The nature of judicial power and its Const.P.76/2007, etc. 134 relation to jurisdiction are all allied concepts and the same cannot be taken away. It is inherent in the nature of judicial power that the Constitution is regarded as a supreme law and any law contrary to it or its provisions is to be struck down by the Court, as the duty and the function of the Court is to enforce the Constitution. Prior to the case of Zafar Ali Shah, this Court had examined different laws and declared that provisions of some of them were contrary to the provisions of the Constitution. Reference to the cases of Mehram Ali ibid, Sh. Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504), Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607), etc is pertinent. Keeping in view the principles defining the powers of judicial review of this Court to examine a law at the touchstone of the Constitution, we have considered the arguments put forward by learned counsel for the petitioner and have also minutely gone through the provisions/ sections of the Ordinance 2000 referred to by the learned counsel in his arguments to ascertain as to whether any of them negates the provisions of the Constitution.” 87. In exercise of judicial powers, as it has been discussed in above referred judgments, while examining the vires of a statute, the powers of this Court are limited to examine the legislative competence or to such other limitations as are in the Constitution and while declaring a legislative instrument as void, it is not because the judicial powers are superior in dignity to the legislative powers but because it enforces the Constitution as a paramount law or Const.P.76/2007, etc. 135 where the legislative instrument is in conflict with the Constitutional provisions so as to give effect to it or where the legislature fails to keep it, within its constitutional limitations. [Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457)]. There are cases wherein this Court has examined the constitutional provisions challenged therein, as well, but while remaining within its limited sphere, as noted above. Reference may be made to Wukala Mahaz Barai Tahafaz Dastoor’s case (PLD 1998 SC 1263). 88. Similarly, in the neighbouring country as well, the constitutional provisions have been challenged from time to time. Reference in this behalf may be made to Smt. Indira Nehru Gandhi’s case (AIR 1975 SC 2299). Brief facts of this case are that the High Court of Allahabad vide judgment dated 12th June, 1975 observed that the appellant (Smt. Indra Nehru Ghandi) held herself out as a candidate from 29th December, 1970 and was guilty of having committed corrupt practice by having obtained the assistance of Gazetted Officers in furtherance of her election prospects; the High Court further found the appellant guilty of corrupt practice committed under Section 123(7) of the Representation of the People Act, 1951, by having obtained the assistance of Yashpal Kapur a Gazetted Officer for the furtherance of her election prospects; the appellant was held to be disqualified Const.P.76/2007, etc. 136 for a period of six years from the date of the order as provided in Section 8(a) of the 1951 Act. Subsequently, the matter was brought under challenge before the Supreme Court in appeal, during the pendency whereof the Constitution (Thirty-ninth Amendment) Act, 1975, was enacted, whereby, apart from other amendments in the Constitution, Article 329A was inserted in the Indian Constitution. Clause (4) of Article 329A, provided that no law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect. Consequently, the above noted Thirty-ninth amendment in the Constitution of India was also brought under challenge Const.P.76/2007, etc. 137 before the Supreme Court of India in above noted case. Validity of the legislative judgment, whereby the above referred amendments were made, was the moot question before the Supreme Court including the questions that whether by amending a law, action of judgment can be nullified and whether it is upon the constitutional authority to declare an order or findings to be void and of no effect or whether such declaration can only be made under either any judicial proceedings or on a proceedings before higher Court. The answer to this proposition has been replied in the following paras :- “189. Another aspect of part (iv) of Clause (4) relates to the question as to whether it is open to the constituent authority to declare an order and a finding of the High Court to be void and of no effect or whether such a declaration can be made only either in separate judicial proceedings or in proceedings before a higher court. 190. A declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislative function have been demarcated and it is not permissible for the legislature to encroach upon the judicial sphere. It has accordingly been held that a legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the legislature to declare the judgment of Const.P.76/2007, etc. 138 the court to be void or not binding (see Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1970) 1 SCR 388 (at page 392) = (AIR 1970 SC 192), Janapada Sabha, Chhindwara v. The Central Provinces Syndicate Ltd. (1970) 3 SCR 745 (at page 751) = (AIR 1971 SC 57), Municipal Corporation of the City of Ahmedabad etc. v. New Shorock Spg. & Wvg. Co. Ltd. etc. (1971) 1 SCR 288 = (AIR 1970 SC 1292) and State of Tamil Nadu v. M.Rayappa Gounder (AIR 1971 SC 231). 191. The position as it prevails in the United States, where guarantee of due process of law is in operation, is given on pages 318-19 of Vol. 46 of the American Jurisprudence 2d. as under: “The general rule is that the legislature may not destroy, annul, set aside, vacate, reverse, modify, or impair the final judgment of a court of competent jurisdiction, so as to take away private rights which have become vested by the judgment. A statute attempting to do so has been held unconstitutional as an attempt on the part of the legislature to exercise judicial power, and as a violation of the Constitutional guarantee of due process of law. The legislature is not only prohibited from reopening cases previously decided by the courts, but is also forbidden to affect the inherent attributes of a judgment. That the statute is under the guise of an act affecting remedies does not alter the rule. It is worthy of notice, however, that there are cases in which judgments requiring acts to be done in the future may validly be affected by subsequent legislation making illegal that which the judgment found to be legal, or making legal that which the judgment found to be illegal. 10.- Judgment as to public right. With respect to legislative interference with a judgment, a distinction has been made between public and private rights under which distinction a statute may be valid even though it renders ineffective a judgment concerning a public right. Even after a public right has been established by Const.P.76/2007, etc. 139 the judgment of the court, it may be annulled by subsequent legislation. 192. Question arises whether the above limitation imposed upon the legislature about its competence to declare a judgment of the court to be void would also operate upon the constituent authority? 193. View has been canvassed before us that the answer to the above question should be in the negative. Although normally a declaration that the judgment of a court is void can be made either in separate proceedings or in proceedings before the higher court, there is, according to this view, no bar to the constituent authority making a declaration in the Constitutional law that such an order would be void especially when it relates to a matter of public importance like the dispute relating to the election of a person holding the office of Prime Minister. The declaration of the voidness of the High Court judgment is something which can ultimately be traced to part (i). Whether such a declaration should be made by the court or by the constituent authority is more, it is urged, a matter of the mechanics of making the declaration and would not ultimately affect the substance of the matter that the judgment is declared void. According to Article 31B, without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the Const.P.76/2007, etc. 140 contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force. The effect of the above article, it is pointed out, is that even if a statute has been declared to be void on the ground of contravention of fundamental rights by a court of law, the moment that statute is specified by the constituent authority in the Ninth Schedule to the Constitution, it shall be deemed to have got rid of that voidness and the order of the court declaring that statute to be void is rendered to be of no effect. It is not necessary in such an event to make even the slightest change in the statute to rid it of its voidness. The stigma of voidness attaching to the statute because of contravention of fundamental rights found by the Court is deemed to be washed away as soon as the statute is specified by the constituent authority in the Ninth Schedule and the judgment of the Court in this respect is rendered to be inoperative and of no effect. In the case of Don John Douglas Liyange v. The Queen 1967 AC 259 the Judicial Committee struck down as ultra vires and void the provisions of the Criminal Law (Special Provisions) Act, 1962 on the ground that they involved the usurpation and infringement by the legislature of the judicial powers inconsistent with the written Constitution of Ceylon. Their Lordships, however, expressly referred on page 287 to the fact that the impugned legislation had not been passed by two-thirds majority in the manner required for an amendment of the Constitution contained in Section 29(4) of the Constitution. It was observed: “There was speculation during the argument as to what the position would be if Parliament sought to procure such a result by first amending Const.P.76/2007, etc. 141 the Constitution by a two-thirds majority. But such a situation does not arise here. In so far as any Act passed without recourse to Section 29(4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires. “ The above observations, it is urged, show that the restriction upon the legislature in encroaching upon judicial sphere may not necessarily hold good in the case of constituent authority. 194. The above contention has been controverted by Mr. Shanti Bhushan and he submits that the limitation on the power of the legislature that it cannot declare void a judgment of the Court equally operates upon the constituent authority. It is urged that the constituent authority can only enact a law in general terms, even though it be a Constitutional law. The constituent authority may also, if it so deems proper change the law which is the basis of a decision and make such change with retrospective effect, but it cannot, according to the learned Counsel, declare void the judgment of the Court. Declaration of voidness of a judgment, it is stated, is a judicial act and cannot be taken over by the constituent authority. Although legislatures or the constituent authority can make laws including those for creation of courts, they cannot, according to the submission, exercise judicial functions by assuming the powers of a super court in the same way as the Courts cannot act as a super legislature. It is in my opinion, not necessary to dilate upon this aspect and express a final opinion upon the rival contentions, because of the view I am taking of part (iii) of Clause (4).” Const.P.76/2007, etc. 142 89. As far as sub-Article 4 of Article 329A, providing constitutional protection to the amended law is concerned, the Court, ultimately, held as under:- “690. The Parliament, by Clause (4) of Article 329-A, has decided a matter of which the country's Courts were lawfully seized. Neither more nor less. It is true, as contended by the learned Attorney-General and Shri Sen, that retrospective validation is a well known legislative process which has received the recognition of this Court in tax cases, pre-emption cases, tenancy cases and a variety of other matters. In fact, such validation was resorted to by the legislature and upheld by this Court in at least four election cases, the last of them being Kanta Kathuria v. Manak Chand Surana (1970) 2 SCR 835 = (AIR 1970 SC 694). But in all of these cases, what the legislature did was to change the law retrospectively so as to remove the reason of disqualification, leaving it to the Courts to apply the amended law to the decision of the particular case. In the instant case the Parliament has withdrawn the application of all laws whatsoever to the disputed election and has taken upon itself to decide that the election is valid. Clause (5) commands the Supreme Court to dispose of the appeal and the cross-appeal in conformity with the provisions of Clause (4) of Article 329-A, that is in conformity with the "judgment" delivered by the Parliament. The "separation of powers does not mean the equal balance of powers" says Harold Laski, but the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co- operative federalism which contains no rigid Const.P.76/2007, etc. 143 distribution of powers but which provides a system of salutary checks and balances. 90. Likewise, recently the Constitutional Court of Italy examined the constitutionality of Article 1 of law No. 124 of 23rd July 2008 [the provision ordering the suspension of criminal proceedings against the high offices of state]. Brief facts of the said case are that the above said law was promulgated in Italy to provide protection to some of the politicians including the Silvio Berlusconi, the President of the Council of Ministers. Article 1(1) of the said law provided that “without prejudice to the cases governed by Articles 90 and 96 of the Constitution, any criminal proceedings against individuals which occupy the offices of President of the Republic, President of the Senate of the Republic, President of the Chamber of Deputies and President of the Council of Ministers, shall be suspended from the time when the office or function is taken up until the end of the term in office; the suspension shall also apply to criminal proceedings for conduct prior to taking up the office or function”. Whereas Sub-Section 7 of the said Article provided that “the provisions of the Article shall also apply to criminal proceedings in progress, at every stage, state or instance, at the time when the present law enters into force”. During the course of criminal proceedings, the Tribunale di Milano, by referral order of 26th September, 2008 (referral order No. 397 of 2008), raised the Const.P.76/2007, etc. 144 question with regard to the constitutionality of Article 1(1) and (7) of law No. 124 of 23rd July 2008, with reference to Articles 3, 136 and 138 of the Constitution. However, ultimately the matter came up before the Constitutional Court of Italy, when the Court concluded that the procedural suspension provided for, under the contested provision, is aimed essentially at protecting the functions of the members and Presidents of certain constitutional organs and, at the same time, creates a clear difference in treatment before the courts. Therefore, it was held that both of the prerequisites for constitutional privileges are satisfied, which means that, that matter is not susceptible to regulation through ordinary legislation. It was further held that in particular, the contested legislation confers on the holders of four high institutional offices an exceptional and innovative protected status, which cannot be inferred from the constitutional provisions on privileges and which therefore is not covered under constitutional law, therefore, it does not constitute a source of law of an appropriate level to make provision over this matter. Thus the Court, eventually, declared that Article 1 of law No. 124 of 2008 is unconstitutional due to violation of the combined provisions of Articles 3 and 138 of the Constitution, in relation to the arrangements governing Const.P.76/2007, etc. 145 privileges contained in Articles 68, 90 and 96 of the Constitution. 91. Thus, in view of above discussion, it is held that amendment in Section 31A of the NAO, 1999 by inserting clause (aa) in it, by means of Section 6 of the NRO, 2007 is unconstitutional and void ab initio. 92. Section 7 of the NRO, 2007 further added Section 33F in the NAO, 1999, by means of which, following categories of the persons have benefitted: i) The persons, against whom investigation is pending but no trial has commenced; the investigation has come to an end. ii) The persons, against whom the trial is pending but no conviction/ acquittal has been recorded; the trial comes to an immediate end. iii) The persons, who have been convicted but have merely filed an appeal or some proceedings, against that conviction before the High Court or the Supreme Court and whether or not such conviction/sentence has been suspended, before the promulgation of the NRO, 2007; everything stands terminated and withdrawn. iv) The persons, who have been acquitted and against their acquittal an appeal is pending; they also stand absolved. Const.P.76/2007, etc. 146 v) The persons, against whom, request for mutual legal assistance and civil party to proceedings, have been initiated by the Federal Government; that stand withdrawn or terminated. vi) ‘holders of public office’, whose cases have been withdrawn or terminated, shall also not be liable to any action in future, as well, under the NRO, 2007, for acts having been done in good faith before the cut off date. 93. It may be noted that Section 33E of the NAO, 1999 provides that any fine or other sum due, or as determined to be due by a Court, shall be recoverable as arrears of land revenue. Apparently, Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007 has provided a mechanism for withdrawal and termination of prolonged pending proceedings, initiated prior to 12th October, 1999. For ready reference, Section 7 of the NRO, 2007 is reproduced hereinbelow:- “7. Insertion of new section, Ordinance, XVIII of 1999. In the said Ordinance, after section 33E, the following new section shall be inserted, namely: “33F. Withdrawal and termination of prolonged pending proceedings initiated prior to 12th October, 1999. (1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, proceedings under investigation or pending in any court including a High Court and the Supreme Court of Pakistan initiated by or on a reference by the National Accountability Bureau Const.P.76/2007, etc. 147 inside or outside Pakistan, including proceedings continued under section 33, requests for mutual assistance and civil party to proceedings initiated by the Federal Government before the 12th day of October, 1999 against holders of public office stand withdrawn and terminated with immediate effect and such holders of public office shall also not be liable to any action in future as well under this Ordinance for acts having been done in good faith before the said date; Provided that those proceedings shall not be withdrawn and terminated which relate to cases registered in connection with the cooperative societies and other financial and investment companies or in which no appeal, revision or constitutional petition has been filed against final judgment and order of the Court or in which an appellate or revisional order or an order in constitutional petition has become final or in which voluntary return or plea bargain has been accepted by the Chairman, National Accountability Bureau under section 25 or recommendations of the Conciliation Committee have been accepted by the Governor, State bank of Pakistan under section 25A. (2) No action or claim by way of suit, prosecution, complaint or other civil or criminal proceeding shall lie against the Federal, Provincial or Local Government, the National Accountability Bureau or any of their officers and functionaries for any act or thing done or intended to be done in good faith pursuant to the withdrawal and termination of cases under sub-section (1) unless they have deliberately misused authority in violation of law.” The above provision seems to be open ended, as on account of non obstante clause, it directs that notwithstanding anything contained in this Ordinance or any other law for the time being in force, proceedings under investigation or pending in any Court, including a High Court and the Supreme Court of Pakistan, initiated by or on a reference by Const.P.76/2007, etc. 148 the National Accountability Bureau, inside or outside Pakistan, including proceedings continued under Section 33, requests for mutual assistance and civil party to proceedings, initiated by the Federal Government, before the 12th October, 1999, against holders of public offices, stand withdrawn and terminated with immediate effect and such ‘holders of public office’ shall also not be liable to any action in future, as well, under this Ordinance, for acts having been done in good faith, before the said date. This is for the first time that in the newly inserted Section 33F of the NAO, 1999 by means of Section 7 of the NRO, 2007, the connotation ‘holders of public office’ has been used. The definition of the ‘holders of public office’ has been provided in Section 5(m) of the NAO, 1999, which reads as follows:- 5(m). "Holder of Public Office" means a person who :- (i) has been the President of Pakistan or the Governor of a Province. (ii) is, or has been the Prime Minister, Chairman Senate, Speaker of the National Assembly, Deputy Speaker National Assembly, Federal Minister, Minister of State, Attorney General and other Law Officer appointed under the Central Law Officers Ordinance, 1970 (VII of 1970), Advisor to the Prime Minister, Special Assistant to the Prime Minister, Federal Parliamentary Secretary, Member of Parliament, Auditor General, Political Secretary, Consultant to the Prime Minister and holds or has held a post or office with the rank or status of a Federal Minister or Minister of State; (iii) is, or has been, the Chief Minister, Speaker Const.P.76/2007, etc. 149 Provincial Assembly, Deputy Speaker Provincial Assembly, Provincial Minister, Advisor to the Chief Minister, Special Assistant to the Chief Minister, Provincial Parliamentary Secretary, Member of the Provincial Assembly, Advocate General including Additional Advocate General and Assistant Advocate General, Political Secretary, Consultant to the Chief Minister and who holds or has held a post or office with the rank or status of a Provincial Minister; (iv) is holding, or has held, an office or post in the service of Pakistan, or any service in connection with the affairs of the Federation, or of a Province, or of a local council constituted under any Federal or Provincial law relating to the constitution of local councils, cooperative societies or in the management of corporations, banks, financial institutions, firms, concerns, undertakings or any other institution or organization established, controlled or administered by or under the Federal Government or a Provincial Government, other than a person who is a member of any of the armed forces of Pakistan, except a person who is, or has been a member of the said forces and is holding, or has held, a post or office in any public corporation, bank, financial institution, undertaking or other organization established, controlled or administered by or under the Federal Government or a Provincial Government or, notwithstanding any thing contained in the Pakistan Army Act, 1952 (XXXIX of 1952), or any other law for the time being in force, a person who is a civilian employee of the armed forces of Pakistan; (v) has been, the Chairman or Vice Chairman of a zila council, a municipal committee, a municipal corporation or a metropolitan corporation constituted under any Federal or Provincial law relating to local councils; and “Explanation”- For the purpose of this sub-clause the expressions "Chairman" and "Vice Chairman" shall include "Mayor" and "Deputy Mayor" as the case may be, and the respective councilors therein. (va) is or has been a District Nazim or Naib Nazim, Tehsil Nazim or Naib Nazim or Union Nazim or Const.P.76/2007, etc. 150 Naib Nazim; (vi) has served in and retired or resigned from or has been discharged or dismissed from the Armed Forces of Pakistan.” 94. It may be noted that NAO, 1999 was promulgated on 16th November, 1999, after military takeover in the country, on 12th October, 1999. Although in its application the NAO, 1999 during the regime of General Pervez Musharraf has been the subject of debate, pro and con, it has not been amended by any succeeding Parliament. In fact, the promulgation of the NAO, 1999 was claimed to have been expedient and necessary to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases, involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto. [The underlined words have been added in the preamble vide Ordinance No.CXXXIII of 2002 dated 23rd November 2002]. Similarly, an emergent need was also found for the recovery of outstanding amounts from the persons, who have committed default in the repayment of amounts to Banks, Financial Institutions, Government agencies and other agencies. Likewise, it was also felt that there was a grave and urgent Const.P.76/2007, etc. 151 need for the recovery of State money and other assets from those persons who have misappropriated or removed such money or assets through corruption, corrupt practices and misuse of power or authority. Yet there was another important aspect of the preamble, which was inserted vide Ordinance No. XXXV of 2001 dated 10th August 2001 which speaks that there is an increased international awareness that nations should co-operate in combating corruption and seek, obtain or give mutual legal assistance in matters concerning corruption and for matters connected, ancillary or incidental thereto. 95. It may be noted that the word ‘corruption’ has been defined by this Court in Syed Zafar Ali Shah’s case (PLD 2000 SC 869), in the following terms:- “233. ‘Corruption’ is generally defined as the abuse of public office for private gain. In view of the fact that scope of corruption has widened, this definition would include the abuse of all offices of trust. It has diverse meanings and far-reaching effects on society, government and the people. Of late, the culture of corruption and bribe has embedded in our society to the extent that even routine works which should be done without any approach or influence are commonly known to be done only on some such consideration. This bribe culture has plagued the society to the extent that it has become a way of life. In Anatulay VIII (1988) 2 SCC 602 where Abdul Rahman Anatulay, Chief Const.P.76/2007, etc. 152 Minister of Maharashtra was prosecuted for, corruption Sabyasachi Mukharji, J. lamented as follows-.- “Values in public life and perspective of values in public life, have undergone serious changes and erosion during the last few decades. What was unheard before is common place today. A new value orientation is being undergone in our life and culture. We are at the threshold of the cross-roads of values. It is for the sovereign people of this country to settle these conflicts yet the Courts have a vital role to play in these matters.” 234. …………………………………… When corruption permeates in the social, political and financial transactions to such an extent that even proper and honest orders and transactions are suspected to the point of belief being a result of corruption, one is compelled to infer all is not well and corruption has gone deep in the roots. No doubt, this is an age of "corruption eruption", but during the last few years there have been large scale prosecutions of former world leaders in various countries on the charges of corruption and corrupt practices, in some cases leading to convictions, which phenomenon must not be taken lightly and the issue must be addressed adequately and effectively through transparent institutionalized processes.” 96. One of the learned counsel appearing for the petitioners argued that the NRO, 2007 is the result of abuse of public office for private gain, therefore, it is like a virus which has infected the body of politics. According to him corruption vitiates like fraud, which vitiates all transactions, therefore, the NRO, 2007 stands vitiated by the effect of Const.P.76/2007, etc. 153 abuse of public office for private gain. He further added that the NRO, 2007 is a document which is non est; it is like a still born, which dies in mother’s wombs. 97. Thus the theme of the NAO, 1999, as it is evident from its preamble and substantive part, is to deal with the cases of corruption and corrupt practices, strictly to achieve the object spelt out in preamble. The expression “corruption and corrupt practices” has been defined in Section 9 of the NAO, 1999, as under:- 9. Corruption and Corrupt Practices (a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:- (i) if he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860) for doing or for-bearing to do any official act, or for showing or for-bearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person; or (ii) If he accepts or obtains or offers any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or likely to be, concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with his official functions or from any person whom he knows to be interested in or related to the person so concerned; or Const.P.76/2007, etc. 154 (iii) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or willfully allows any other person so to do; or (iv) If he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents or any other person, any property, valuable thing, or pecuniary advantage; or (v) If he or any of his dependents or benamidars owns, possesses, or has acquired right or title in any assets or holds irrevocable power of attorney in respect of any assets or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for, or maintains a standard of living beyond that which is commensurate with his source of income; or (vi) If he misuses his authority so as to gain any benefit or favour for himself or any other person, or render or attempts to render or willfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority; (vii) If he has issued any directive, policy, or any SRO (Statutory Regulatory Order) or any other order which grants or attempts to grant any undue concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar or any other person; or (viii) if he commits an offence of willful default; or (ix) if he commits the offence of cheating as defined in section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and thereby dishonestly induces members of the public at large to deliver any property including money or valuable security to any person; or Const.P.76/2007, etc. 155 (x) if he commits the offence of criminal breach of trust as defined in section 405 of the Pakistan Penal Code, 1860 (Act XLV of 1860) with regard to any property including money or valuable security entrusted to him by members of the public at large; (xi) if he, in his capacity as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust as provided in section 409 of the Pakistan Penal Code, 1860 (Act XLV of 1860) in respect of property entrusted to him or over which he has dominion; (xii) if he aids, assists, abets, attempts or acts in conspiracy with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi).]; and (b) All offences under this Order shall be non-bailable and, notwithstanding anything 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. (c) If after completing the investigation of an offence against a holder of public office or any other person, the Chairman NAB is satisfied that no prima facie case is made out against him and the case may be closed, the Chairman NAB shall refer the matter to a Court for approval and for the release of the accused, if in custody.] 98. This Court in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), has spelt out a mechanism for the NAB and the Courts thereunder, as under:- “266. A perusal of the Preamble of the NAB Ordinance shows that it is a composite and an extensive law and its interpretation has to be done in a manner different Const.P.76/2007, etc. 156 from the normal interpretation placed on purely criminal statutes. This law deals with, among others, setting up of the National Accountability Bureau, which is an executive as well as administrative authority and an investigating agency; which deals with several aspects of ‘corruption’ etc. The NAB does not merely deal with crimes of corruption, it also deals with their investigation and settlement out of Court. Bargain out of Court is now an established method by which things are settled in several developed societies. It was necessary in cases where the criminal is a potential investor and is inter-linked with the economy of the society after he has cleared his liability. There appears to be nothing amiss insofar as it does not oust the jurisdiction of the Accountability Courts to exercise their judicial power in appropriate proceedings. Rather this is in the nature of a facility provided to the accused. There is nothing wrong with the NAB Ordinance providing for a procedure of bargaining. 267. Moreover, the scheme for exploring the possibility of settlement during investigation/inquiry stage by the Chairman NAB cannot be ignored straight away. At the outset, most of the lawyers tend to consider the question of settlement out of court. There is need to focus attention on this significant fact of the matter. The rationale behind the Ordinance is not only to punish those who were found guilty of the charges leveled under the Ordinance but also to facilitate early recovery of the ill-gotten wealth through settlement where practicable. The traditional compromise, settlement, compoundability of offence during the course of proceedings by the Courts after protracted litigation is wasteful. Viewed in this perspective, a Const.P.76/2007, etc. 157 power has been vested in the Chairman NAB to facilitate early settlement for recovery of dues through ‘plea bargaining’ where practicable. Lawyers are often interested in settling the disputes of their clients on just, fair and equitable basis. There are different approaches to settlement. Plea bargaining is not desirable in cases opposed to the principles of public policy. Chairman NAB/Governor, State Bank of Pakistan, while involved in plea bargaining negotiations, should avoid using their position and authority for exerting influence and undue pressure on parties to arrive at settlement. However, in the interest of revival of economy and recovery of outstanding dues, any type of alternate resolution like the ‘plea bargaining’ envisaged under section 25 of the Ordinance should be encouraged. An accused can be persuaded without pressure or threat to agree on a settlement figure subject to the provisions of the Ordinance. Establishing this procedure at the investigation/inquiry stage greatly reduces determination of such disputes by the Court. However, as the plea bargaining/ compromise is in the nature of compounding the offences, the same should be subject to approval of the Accountability Court. Accordingly, section 25 of the impugned Ordinance be suitably amended.” 99. The provisions of the NAO, 1999 as well as their interpretation, as noted in the preceding paras, provide high moral authority to the functionaries, to discharge their duties for curbing corruption and corrupt practices, to achieve the object namely, conviction and effecting the recovery of national wealth, even before the trial, keeping in view the Const.P.76/2007, etc. 158 solid mechanism provided under Section 25 of the NAO. As far as its provisions, embedded in Section 21, are concerned, it lays down procedure for international cooperation and request for mutual legal assistance. It reads as follows:- 21. International Cooperation - Request for mutual legal assistance: The Chairman NAB or any officer authorized by the Federal Government may request a Foreign State to do any or all of the following acts in accordance with the law of such State:- (a) have evidence taken, or documents or other articles produced; (b) obtain and execute search warrants or other lawful instruments authorizing search for things relevant to investigation or proceedings in Pakistan believed to be located in that State, and if found, seize them; (c) freeze assets, by whatever processes are lawfully available in that State, to the extent to which the assets are believed on reasonable grounds to be situated in that State; (d) confiscate articles and forfeit assets to the extent to which the articles or assets, as the case may be, are believed to be located in that State; (e) transfer to Pakistan any such evidence, documents, things, articles, assets or proceeds realized from the disposal of such articles or assets; (f) transfer in custody to Pakistan a person detained in that State who consents to assist Pakistan in the relevant investigation or proceedings; (g) Notwithstanding anything contained in the Qanun- e-Shahadat Order 1984 (P.O.10 of 1984) or any other law for the time being in force all evidence, documents or any other material transferred to Pakistan by a Foreign Government shall be receivable as evidence in legal proceedings under this Ordinance; and Const.P.76/2007, etc. 159 (h) notwithstanding anything to the contrary contained hereinabove, the Chairman NAB may, on such terms and conditions as he deems fit, employ any person or organization, whether in Pakistan or abroad, for detecting, tracing or identifying assets acquired by an accused in connection with an office under this Ordinance, and secreted or hoarded abroad, or for recovery of and repatriation to Pakistan of such assets.” A perusal of above Section indicates that on account of international cooperation, request for mutual legal assistance means, the NAB or any officer, authorized by the Federal Government, has been empowered to make a request to a Foreign State to do any or all things mentioned therein; to freeze assets by whatever processes are lawfully available in that State, to the extent to which the assets are believed, on reasonable grounds, to be situated in that State; and to transfer to Pakistan any such evidence, documents, things, articles, assets or proceeds, realized from the disposal of such articles or assets. As far as, confiscation or realization of the national wealth, situated within the country, is concerned, there is no difficulty for the NAB to deal with it, in accordance with the procedure provided under the NAO, 1999. However, for achieving the object to save the assets outside the country, allegedly belonging to the nation, a mechanism has been provided on the basis of international cooperation. Const.P.76/2007, etc. 160 100. It is to be noted that while making request to the Foreign States for mutual legal assistance, no request for criminal proceedings in such a State can be demanded. However, Courts of the said States may proceed independently for an action, which falls within the definition of their municipal laws, governing criminal actions. Pakistan is not the only country, which has demanded for such mutual legal assistance; there are so many other countries, on whose demand, subject to determination, the wealth of the nation was reverted back to those States. In this behalf reference may be made to the case of Ferdinand Emmanuel Edralin Marcos, President of the Philippines. Detailed marshaling of the facts of said case would not serve any purpose, however, the crux of the matter in the form of brief summery is as under:- Marcos was elected as President of Philippines in November 1965 and re-elected in 1969. On 21st September 1972 he declared Marshal Law in the country which was lifted on 7th January 1981. He was re-elected as President in 1981 and remained on this position till February 1986, when he was removed through a popular revolt in 1986. In 1986, on the basis of documents lost by him in the Presidential palace, assets worth US$ 356 millions were discovered in his name in Swiss Banks. The said assets were freezed on the request filed through Swiss Lawyers in February 1986. On 28th February 1986 the Philippine Presidential Commission on Good Government (PCGG) formed Const.P.76/2007, etc. 161 under the Presidential Order No.1 of 1986 to recover Marcos-linked assets in the Philippines and abroad. On 24th March 1986 the Swiss Federal Council imposed an unprecedented unilateral and exceptional freeze order on Marcos assets, after it was informed by a Swiss Bank that De Guzman, a Filipino Banker, with power of attorney from Marcos and his wife, had requested for the transfer of assets to an Australian Bank belonging to him, in anticipation of the Philippine Governmental claim. This was done without any mutual legal assistance treaty on criminal matters between Switzerland and Philippines, just on the basis of the Swiss Federal Act on International Mutual Assistance in criminal matters (Act on International Criminal Assistance, IMAC). On 18th April 1986 the Philippines Government made informal request for continuation of freeze order but the freezing order was rescinded on 23rd April 1986, however, the assets were re-freezed on 20th July 1986, after a formal request, made by the Philippines Government through a diplomatic note, for continuation of freeze order. In 1989 the Government of Philippines brought Court cases in the US District Courts, California and Hawaii, however, these cases were dropped when the Marcos family agreed to transfer certain assets held in US, to the Philippine government. On 20th December 1990, Swiss Federal Court (Supreme Court) accepted that, in principle, the frozen assets should be returned to the Philippines and also ordered for transmission of Banking documents pertaining to Marcos’s deposits to Philippines government, subject to some conditions. On 17th December 1991 the PCGG filed civil case in the Filipino Court of Sadiganbayan seeking recovery of Marcos properties and assets just four days prior to the deadline of 21st December 1991. On 28th December 1993 the government of Philippines entered into 75/25(%) sharing agreement with Marcos family through PCGG which was declared invalid by the Philippines Supreme Court on 9th December 1998. Const.P.76/2007, etc. 162 On 10th December 1997, the Swiss Federal Court (Supreme Court) took decisive steps by issuing decision to transfer US$ 540 million (increased to US$ 658 million with interest) of Marcos, to the custody of Sadiganbayan, under the IMAC. The revised law made it, in principle, essential for the country to which the funds are to be restituted, to prove the illegal origin and the legal ownership of the funds through a legally binding judgment. However, the Republic of Philippines guaranteed that the decision about the seizure or restitution of the assets to the entitled parties would be taken in judicial proceedings, to satisfy the requirement of Article 14 of the International Covenant on Civil and Political Rights 1966 (ICCPR). In September 2000 Filipino Anti-Corruption Court Sadiganbayan’s first division, made, prima facie, decision that the entire US$ 627 million of Marcos funds, repatriated from Switzerland, were to be considered the property of Philippines. On 15th July 2003, Philippines Supreme Court ruled that the funds transferred from Switzerland are ill- gotten and must, therefore, be handed over to the Philippine Government, confirming Swiss Federal Court’s decision concerning the illegitimate origin of the funds. The money was to be used for buying the land for its distribution to poor farmers. On 5th August 2003 Swiss and Filipino authorities expressed their satisfaction on the said decision and opined that the funds transferred from Switzerland to PNB escrow account, can now be transferred into the care of the government of Philippines, which was ultimately remitted to the Philippine treasury on 4th February 2004. Afterwards the Federal Supreme Court of Switzerland vide partial decision dated 18th August 2006, freezed the assets of GEI Inc (owned by Marcos/associates) and set a deadline of 31st December 2006 for filing or decision of the Court of first instance about the seizer of said assets, which was provided on 28th December 2006. The beneficiaries/associates of Marcos filed appeals which were dismissed vide order dated 1st June 2007. Const.P.76/2007, etc. 163 It may be noted that on account of above proceedings against Marcos, the money/funds belonging to Philippine Government were returned by the Swiss Courts. 101. Similarly, there is another case, from Nigerian jurisdiction, wherein the Head of the State namely Sani Abacha, was found involved in corruption and corrupt practices and proceedings, against him, were initiated for return of his assets from Switzerland to Nigeria and from 1999 to 2009, approximately US$ 1.2 billion, had been returned to the Federal Republic of Nigeria. Brief history of this case is also narrated hereinbelow for reference:- Sani Abacha began his career as second lieutenant in the Nigerian Army in 1963, rose through the ranks to the Armed Forces Ruling Council (AFRC) and eventually became head of State. He died on 8th June 1998 suddenly of a heart attack. He was listed as the world's fourth most corrupt leader in recent history by Transparency International in 2004. General Abdulsalami Abubakar's interim government had delivered a clear message that Abacha had looted huge sums, and it had to be restored. Members of the Abacha family and some of their accomplice 'voluntarily' returned approximately US$ 1 billion to the Federal Government of Nigeria, during that tenure. Obasanjo's government has implicated the deceased General Abacha and his family in wholesale looting of Nigeria's coffers. According to post-Abacha government sources, some US$ 3 billion in the shape of foreign assets have been traced, in the name of Abacha, his family members, representatives and accomplices. Const.P.76/2007, etc. 164 In 1999 Nigeria transmitted a request for judicial assistance to Switzerland against Sani Abacha and fourteen other persons, for blocking of their assets, channeled into Switzerland and also disclosing the relevant banking documents. The FOG blocked amount of US$ 83 million in the banks of Geneva and Zurich. In October 1999 Geneva’s judiciary initiated various proceedings against family members and business friends of Abacha including Mohammed Abacha and Atiku Bagudu, on suspicion of money laundering, fraud and taking part in a criminal organisation. In furtherance whereof the accounts already blocked in the judicial assistance proceedings as well as other accounts, traced during the criminal investigation, were blocked. In the course of the proceedings, an amount of US$ 70 million was transferred to the bank of International Settlement, in the year 2000. In February 2005, the Swiss Federal Court rejected the appeal filed by the Abachas against the repatriation of the most of the funds frozen in Switzerland, totaling about US$ 468 million, approximately, however, US$ 40 million, the remaining frozen until the Abachas were given the opportunity to attempt to demonstrate that they were not of criminal origin. An additional US$ 700 million were 'voluntarily' returned or forfeited in the context of criminal proceedings initiated in Switzerland, Jersey and Liechtenstein. From September 1999 to date, approximately US$ 1.2 billion have been repatriated to the Federal Republic of Nigeria (including from Switzerland, Luxembourg, Jersey, Liechtenstein, Belgium and the UK). 102. Apart from above two cases, there is yet another case from UK jurisdiction i.e. High Court of Justice, Queen’s Bench Division, in Re: The Queen on the Application of Const.P.76/2007, etc. 165 Corner House Research and Campaign Against Arms Trade vs. The Director of The Serious Fraud Office and BAE Systems PLC [(2008) EWHC 714]. The brief summary of the facts is as under:- The BAE Systems was under a contract with Saudi Arabia for the purchase of Al-Yamamah aircrafts. In relation to this contract, several allegations of bribery had been made against the BAE. The Serious Fraud Office (SFO) had been appointed to investigate into the matter. In the course of this investigation the BAE was asked to disclose the details of payments to agents and the consultants with respect to the contract of the aircrafts. In response to this, the solicitors for BAE wrote back to SFO saying that the investigations should be halted; as the continuing investigations would seriously affect the diplomatic relations between the U.K and Saudi Arabia and also that the safety of the British Citizens would be affected. Further, also that the investigations would prevent UK from clinching the largest export contract of Al-Yamamah aircrafts. This however, did not stop the investigations from continuing. In July 2006, the SFO was about to access the Swiss Bank accounts of BAE. This caused a stir and made the Prince Bandar of Arabia to convey to the then Prime Minister of UK, that if the SFO did not stop looking at the Swiss Bank accounts of BAE, and also cease other investigation, then the contract for the aircrafts would be called off and both intelligence and diplomatic relations between the two countries would be seriously ceased. This made the government to rethink its policy, and it was agreed among the Prime Minister and other ministers that if the investigation into this continued then the relations between the two countries would be affected and a severe blow would also be dealt on UK’s foreign policy objectives in the Middle East. Further, there would be a threat to the internal security of the country. Const.P.76/2007, etc. 166 In light of the above developments on 14 December 2006 the Director of SFO terminated all investigation proceedings as it was felt that the continued investigation posed a serious threat to the country’s National and International security and would also affect the lives of their citizens. It was in this light that an NGO called Corner House Research, applied for a judicial review of the decision to terminate the investigation process. The Court, apart from other findings, made the following observations:- The principle of separation of powers cannot be applied in the cases of executive’s decisions affecting foreign policy. The courts can take notice of those cases where the threat involved is not simply against the country’s commercial, diplomatic and security interest but also against its legal system. It is the responsibility of the court to provide protection. Threats to the administration of public justice within a country are the concern primarily of the courts, not the executive. The rule of law requires that the Director should act in a manner consistent, the well recognized standards, which the courts impose by way of judicial review. At the heart of the obligations of the courts and of the judges lies the duty to protect the rule of law The Rule of law is nothing if it fails to constrain overweening power. The courts fulfill their obligation to protect the rule of law by ensuring that a decision maker on whom statutory powers are conferred , exercises those powers independently and without surrendering them to a third party. The executive, Director and the attorney should not make any decision in submission to the threats. The courts cannot exercise jurisdiction on the foreign Const.P.76/2007, etc. 167 state, however, the legal relationships of the different branches of the government and the separation of power depends upon internal constitutional arrangements. They are of no concern to foreign states. A resolute refusal to any foreign threat is the only way to protect national interest. While exercising statutory power an independent prosecutor is not entitled to surrender to the threat of a third party or the foreign state. The discontinuation of the investigation has in fact caused actual damage to the national security, the integrity of criminal justice system and the rule of law. The Director has acted on erroneous interpretation of Art 5 of OECD and both the Director and the government have failed to recognize that the rule of law required the decision to discontinue to be reached as an exercise of independent judgment, in pursuance of power conferred by statute. To preserve the integrity and independence of that judgment demanded resistance to the pressure exerted by means of a specific threat. That threat was intended to prevent the Director from pursuing the course of investigation. It achieved its purpose. On the basis of above findings, the Court ultimately came to the following conclusion:- “The Court has a responsibility to secure the rule of law. The Director was required to satisfy the court that all that could reasonably be done had been done to resist the threat. He has failed to do so. He submitted too readily because he, like the executive, concentrated on the effects which were feared should the threat be carried out and not on how the threat might be resisted. No one whether within this country or outside is entitled to interfere with Const.P.76/2007, etc. 168 the course of our justice. It is the failure of govt. and the defendant to bear the essential principle in mind that justifies the intervention of this court. We shall hear further arguments as to the nature of such intervention. But we intervene in fulfillment of our responsibility to protect the independence of the Director and of our criminal justice system from threat. On 11 Dec 2006, Prime Minister said that this was the clearest case for intervention in the public interest he had seen. We agree.” 103. It is further to be noted that the international cooperation, for the purpose of prevention of corruption, has been considered in the comity of the nations, as their commitment to achieving the object, under the United Nation’s Convention Against Corruption, 2005. Relevant portion therefrom is reproduced hereinbelow for convenience:- “The purposes of this Convention are: (a) To promote and strengthen measures to prevent and combat corruption more efficiently and effectively; (b) To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery; (c) To promote, integrity accountability and proper management of public affairs and public property. Recalling the work carried out by other international and regional organizations in this field, including the activities of the African Union, the council of Europe, the Customs Cooperation Council (also known as the World Customs Organization), the European Union, the League of Arab States, the Const.P.76/2007, etc. 169 Organization for Economic Cooperation and Development and the Organization of American States, Taking note with appreciation of multilateral instruments to prevent and combat corruption, including inter alia, the Inter-American Convention against Corruption, adopted by the Organization of American States on 29 March 1996, the Convention on the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the European Union, adopted by the Council of the European Union on 26 May 1997, the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, adopted by the Organization for Economic Cooperation and Development on 212 November 1997, the Criminal Law Convention on Corruption, adopted by the Committee of Ministers of the Council of Europe on 27 January 1999, the Civil Law Convention on Corruption, adopted by the Committee of Ministers of the Council of Europe and 4 November 1999, and the African Union Convention on Preventing and Combating Corruption, adopted by the Heads of State and Government of the African Union on 12 July, 2003. Welcoming the entry into force on 29 September, 2003 of the United Nations Convention against Transnational Organized Crime.” 104. The Government of Pakistan is also signatory to the above UN Convention as it has been ratified by Pakistan on 31st August, 2007, regarding international cooperation in criminal matters in accordance with Articles 44 to 50 of the above noted UN Convention, according to which, where appropriate and consistent with their domestic legal system, the State Parties shall consider assisting each other in investigation or proceedings in civil and administrative matters, relating to corruption. Const.P.76/2007, etc. 170 105. Learned counsel appearing for the petitioners vehemently contended that on the one hand, the Government of Pakistan is signatory to the UN General Assembly Regulation No. 58/41 of 31st October, 2003, on the international cooperation relating to corruption but at the same time, by means of adding Section 33F in the NAO, 1999 through Section 7 of the NRO, 2007, the prolonged pending proceedings, initiated prior to 12th October 1999, against ‘holders of public office’, inside or outside the country, and cases at the stage of investigation or pending before the High Court or Supreme Court, have been ordered to be withdrawn and terminated by means of the same legislative order; therefore, this amendment is in clear contravention to the provisions of the NAO, 1999 as well as to the above referred international treaty. This act of the legislative authority is not only unconstitutional but simultaneously against the principle of the trichotomy of powers. 106. There is no need to undertake the lengthy discussion relating to powers to withdraw cases. However, as it has been pointed out hereinabove, that according to the scheme of the NAO, 1999 Section 25 of the NAO, 1999 provides that notwithstanding anything contained in Section 15 or in any other law, for the time being in force, where a Const.P.76/2007, etc. 171 ‘holder of public office’ or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains, acquired or made by him in the course, or as a consequence of any offence, under this Ordinance, the Chairman NAB may accept such offer and after determination of the amount, due from such person, and its deposit with the NAB, discharge such person from all his liability in respect of the matter or transaction in issue. In this provision of law as well the word ‘withdrawal’ has not been used, which is akin to process of discharge or acquittal of an accused under the system of criminal administration of justice. 107. So far as withdrawal of a case is concerned, that is possible only with the consent of the Court, as provided in Section 494 Cr.P.C, detailed discussion, in respect whereof has already been made in the preceding paras, while examining the vires of Section 2 of the NRO, 2007. 108. The words “termination of the proceedings, under investigation or pending in any Court, including a High Court and the Supreme Court”, are not recognized under any legal instrument, including the Constitution of Pakistan, Cr.P.C. or NAO, 1999. Much discussion has already been undertaken in this behalf, while examining the Const.P.76/2007, etc. 172 constitutionality of newly inserted clause (aa) in Section 31A of the NAO, 1999, whereby the judgments passed by the Court in absentia under the NAO, 1999, have been declared void ab initio by the legislative authority. 109. The President of Pakistan being an authority to issue temporary legislation can discharge his functions under Article 89 of the Constitution, subject to limitation provided therein but admittedly, no such legislation can be issued, which is against the fundamental rights or any of the provisions of the Constitution. It seems that without caring about the fundamental rights of the non-beneficiaries of the NRO, 2007, on 5th October 2007, the then President had promulgated the NRO, 2007. On our query, learned Acting Attorney General for Pakistan (Mr. Shah Khawar) has placed on record the summary regarding promulgation of the NRO, 2007, for the Prime Minster of Pakistan. A careful perusal of the same indicates that on 5th October 2007, when the summary was moved, the Cabinet in its meeting, held on the same day, had approved the draft of the NRO, 2007, in pursuance whereof, the Prime Minister was requested to advise the then President to approve and sign the NRO, 2007, as such on the same day i.e. 5th October 2007, the NRO, 2007 was promulgated. It is also interesting to note that both the Const.P.76/2007, etc. 173 proceedings and the cases of corruption and corrupt practices, were being terminated or withdrawn in terms of Section 7 of the NRO, 2007, whereby Section 33F has been added in the NAO, 1999 regarding withdrawal and termination of prolonged pending proceedings initiated prior to 12th October 1999. The object, disclosed in the summary for the Cabinet, for issuance of the NRO, 2007 was that it was expedient to promote national reconciliation, foster mutual trust and confidence amongst ‘holders of public office’ and to make the election process more transparent. Ultimately, on the same day, the Ordinance was promulgated when the election of General Pervez Musharraf as the President (in uniform) was scheduled to be held on the very next day i.e. 6th October 2007. At that time, a petition filed by Jamat-e- Islami (PLD 2009 SC 549), was pending and during the course of hearing, vide order dated 5th October, 2007, General Pervez Musharraf was allowed to contest the election conditionally. However, remaining details with regard to issuance of the NRO, 2007 have already been published in Daily Dawn dated 5th October, 2007. 110. We are conscious of the fact that temporary legislation cannot be struck down, taking into consideration the mala fide or subjective consideration for the issuance of Const.P.76/2007, etc. 174 such legislation but simultaneously this Court is empowered to examine the contents of the temporary legislation, if it is inconsistent with the fundamental rights, guaranteed by the Constitution or of any of the provisions of the Constitution has been violated. The Indian Supreme Court, when met with this situation, in the case of State of Rajasthan’s case (AIR 1977 SC 1361), observed as under:- “144. But when we say this, we must make it clear that the constitutional jurisdiction of this Court is confined only to saying whether the limits on the power conferred by the Constitution have been observed or there is transgression of such limits. Here the only limit on the Power of the President under Art. 356, cl. (1) is that the President should be satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The satisfaction of the President is a subjective one and cannot be tested by reference to any objective tests. It is deliberately and advisedly subjective because the matter in respect to which he is to be satisfied is of such a nature that its decision must necessarily be left to the executive branch of Government. There may be a wide range of situations which may arise and their political implications and consequences may have to be evaluated in order to decide whether the situation is such that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. It is not a decision which can be based on what the Supreme Court of United States has described as "judicially Const.P.76/2007, etc. 175 discoverable and manageable standards." It would largely be a political judgment based on assessment of diverse and varied factors, fast changing situations, potential consequences, public reaction, motivations and responses of different classes of people and their anticipated future behaviour and a host of other considerations, in the light of experience of public affairs and pragmatic management of complex and often curious adjustments that go to make up the highly sophisticated mechanism of a modern democratic government. It cannot, therefore, by its very nature be a fit subject matter for judicial determination and hence it is left to the subjective satisfaction of the Central Government which is best in a position to decide it. The Court cannot in the circumstances, go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the Central Government is based. That would be a dangerous exercise for the Court, both because it is not a fit instrument for determining a question of this kind and also because the Court would thereby usurp the function of the Central Government and in doing so, enter the 'Political thicket', which it must avoid if it is to retain its legitimacy with the people. In fact it would not be possible for the Court to undertake this exercise, apart from total lack of jurisdiction to do so, since by reason of Art. 74 cl. (2), the question whether any and if so what advice was tendered by the Ministers to the President cannot be enquired into by the Court, and moreover, "the steps taken by the responsible Government may be founded on information and apprehensions which are not known to and cannot always be made, known to, those who seek to impugn what has been done., (Vide Ningkan v. Government of Const.P.76/2007, etc. 176 Malaysic, 1970 AC 379). But one thing is certain that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the Court would have jurisdiction to examine it, because in that case there would be (sic-no?) satisfaction of the President in regard to the matter which he is required to be satisfied. The satisfaction of the President is a condition precedent to the exercise of power under Art. 356, cl. (1) and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid. Of course by reason of cl. (5) of Art. 356, the satisfaction of the President is final and conclusive and cannot be assailed on any ground but this immunity from attack cannot apply where the challenge is not that the satisfaction is improper or unjustified, but that there is, no satisfaction at all. On such a case it is not the satisfaction arrived at by the President which is challenged, but the existence of the satisfaction itself. Take, for example, a case where the President gives the reason for taking action under Art. 356, cl. (1) and says that he is doing so, because the Chief Minister of the State is below five feet in height and, therefore, in his opinion a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Can the so called satisfaction of the President in such a case not be challenged on the ground that it is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground and is, therefore, no satisfaction at all. It must of course be concerned that in most cases it would be difficult, if not impossible, to challenge the exercise of power under Art. 356, cl. (1 ) even on this Const.P.76/2007, etc. 177 limited ground, because the facts and circumstances on which the satisfaction is based would not be known, but where it is possible, the existence of the satisfaction can always be challenged on the ground that it is mala fide or based on wholly extraneous and irrelevant grounds. This proposition derives support from the decision of the Judicial Committee of the Privy Council in King Emperor v. Banwari Lal Sarma (72 Ind App 57: (AIR 1945 PC 48) where Viscount Simon, L.C. agreed that the Governor General in declaring that emergency exists must act bona fide and in accordance with his statutory powers. This is the narrow minimal area in which the exercise of power under Art. 356, cl. (1) is subject to judicial review and apart from it, it cannot rest with the Court to challenge the satisfaction of the President that the situation contemplated in that clause exists.” However, subsequently, by means of 44th Amendment, Clause (4) of Article 123 of the Indian Constitution, which provided that "notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground", has been omitted. Therefore, in the case of A.K. Roy v. Union of India (AIR 1982 SC 710), the judgment passed in State of Rajasthan’s case (AIR 1977 SC 1361), was considered and it was held that “the Rajasthan case is often cited as an authority for the proposition that the courts ought not to enter the "political Const.P.76/2007, etc. 178 thicket"; it has to be borne in mind that at the time when that case was decided, Article 356 contained clause (5) which was inserted by the 38th Amendment, by which the satisfaction of the President mentioned in clause (1) was made final and conclusive and that satisfaction was not open to be questioned in any court on any ground; clause (5) has been deleted by the 44th Amendment and, therefore, any observations made in the Rajasthan case, on the basis of that clause, cannot any longer hold good; it is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President's satisfaction”. Be that as it may, this Court, while dealing with the same proposition, in Fauji Foundation’s case (PLD 1983 SC 457), has observed as under:- 206. The statement formulated by the High Court, namely: Notwithstanding the reference to Article 14 of the Constitution the above two decisions adequately support the contention of the learned counsel that no Legislature could be permitted to pass a law for the resolution of private dispute which could be decided by the Courts alone and such action amounted to infringement on the field of judiciary, is not discernible from these two decisions, nor can such a statement, as so widely stated, be enunciated in the context of the discussion that I have undertaken in this judgment. Const.P.76/2007, etc. 179 207. The learned counsel for the respondent relied on Basanta Chandra Ghose and others v. Emperor (AIR 1944 FC 86), to impress that the Legislature cannot usurp judicial power in the guise of enacting law. In this case clause (2) of section 10 of the Restriction & Detention Ordinance (3 of 1944) was challenged on the ground that "it was an arrogation of judicial power by legislative authority," as what it achieved was direct disposal of cases by the Legislature itself. In accepting this argument Spens, C. J., held that such a provision was an exercise of judicial power and not an enactment of law as it discharged the pending proceedings which raised questions of fact which had to be determined in reference to facts, as for example the competency of the detaining authority or the colourable nature of the act or the order though purporting to be passed by an authority was not in reality the act of that authority ; and as the determination did not depend on any rule of law it was clearly a judicial act and not an enactment of law. The ratio of this case brings out the distinction between the exercise of judicial power and legislation. Essentially as was held the High Court was called upon to decide a controversy which involved the determination of facts which did not depend on any rule of law. Clearly there was, therefore, an exertion of judicial power, which within its ambit involves an inquiry and investigation of facts and then declaring and enforcing liabilities as they stand on present or past facts, and under any law which already exists, which could not be done otherwise than by the High Court which was seized of the matter. In this situation the Federal Court construed this provision as an exercise of judicial power by a legislative enactment. In Prentis v. Atlantic Coast Line Co. (53 Law Ed. 158), at p. 158, Const.P.76/2007, etc. 180 Justice Holmes distinguished the two (legislation and judicial power) in the following words: "A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing condition by making a new rule, to be applied thereafter to all or some part of those subject to its power." 111. The present case is singular and on its own. We do not even have to go into whether there was any objective basis for the satisfaction required by Article 89 of Constitution, nor into the issue whether such satisfaction is to be entirely subjective. Present case can be resolved simply on the ground that the Federal Government has not even defended the NRO, 2007 and thus not even asserted that there was indeed any such satisfaction at all, subjective or objective. There should at least have been an assertion, howsoever weak it may have been, for the Court to undertake the exercise envisaged in the State of Rajasthan’s case (AIR 1977 SC 1361). In the absence of even a simple assertion by the Government we can easily hold that there was no satisfaction at all. 112. As discussed hereinabove that firstly, the NRO, 2007 as a whole and in particular, its Sections 2, 6 & 7, are inconsistent with Article 25 of the Constitution, as it has Const.P.76/2007, etc. 181 created unreasonable classification, having no rational nexus with the object of the NRO, 2007. 113. Besides above, the principle of equality (Musawat), as enshrined in Article 25 of the Constitution, has its origin in the Islamic teachings. Reference in this behalf may be made to Muhammad (PBUH) Encyclopedia of Seerah (Sunnah, Da’wah and Islam), 1st Edn. 1986. Vol.IV (p:147-148). Relevant portion therefrom, on the subject of “Equality” is reproduced hereinbelow for convenience:- “Equality Equality is an essential requisite of justice, because when there is discrimination and partiality between people, there is no justice. The Code of Allah demands absolute equality of rights between all people without any discrimination or favouritism between man and man and between man and woman on any count. The Qur’an declares. “O mankind! Behold, we have created you all out of a male and a female, and have made you into nations and tribes, so that you may know each other. Surely, the noblest of you in the Sight of Allah is the one who is most pious.” (49:13) This verse clearly establishes equality of all men and women on the basis of common parentage, and as such discounts all claims of superiority or discrimination for any person or group of persons. There is no rational or logical ground for such claims, and therefore, it is unreal and unnatural to demand discrimination between man and man or between man and woman on any count. Const.P.76/2007, etc. 182 Besides’ all human beings are servants (ibid) of Allah and therefore equal. They are all created by Allah and all are His servants alone. As such they are all equal and enjoy equal rights in all areas of life. In His service and obedience, all humans are equal and stand on the same level without any discrimination all as one race and one people before Him, no one claiming any special privileges and honours. In Surah al-A’raf we have these words: “When your Lord drew forth from the children of Adam from their loins their descendants, and made them testify concerning themselves, saying: ‘Am I not your Lord?’ They said: Yes we do testify.’” (7:172). And then we find these words; “Surely, this Brotherhood of yours is single Brotherhood, and I am your Lord: therefore serve and obey Me (and no other).” (21:92 and 23:52)) This concept of equality bestows equal rights upon all members of the human race and leaves no room for any discrimination of any kind, whether by colour, creed, race or sex. If there is any discrimination anywhere, it is man made, not divinely ordained, and therefore, must be denounced, condemned and discarded. Any such discrimination is unnatural and artificial and goes against the basic Doctrine of Tawhid. As such it will endanger the right balance and stability of human social life. If there is any discrimination for any man or woman in Islam, it is on merit and on merit alone. Those who develop their personal relationship with Allah fear Const.P.76/2007, etc. 183 Allah, attain degrees of piety and taqwa of Allah, and reach higher stations of excellence in the Sight of Allah. However, even they stand equal with others in the enjoyment of rights in society, and can claim no superiority or favouritism over others so far as social rights are concerned. This basic doctrine also demands equality of all men and women before the law and negates any kind of discrimination between them. This is the essential requirement of the Rule of Law in Islam: that all men and women are equal in the eyes of the Law and must be treated as such. Respect for human dignity, upon which the Prophet of Islam laid so much emphasis, also demands equality for all men and women in all fields of human activity. (For details see under “Basic Human Rights” in Volume III of this work) Equality of Rights It is implicit in the Doctrine of Tawhid and is also an essential ingredient of justice and equality that all people must enjoy equal rights without discrimination on any count in all fields and departments of life. In the enjoyment of social, political and religious rights, there must not be any discrimination between ruler and ruled, employer and employee, rich and poor and man and woman: all should enjoy these rights freely, equally and without any check or restriction. Denial of any of these rights to any member would, in fact, be a denial of the Doctrine of Tawhid. Equal Treatment The logical consequences of the above principle in practice demands absolutely equal treatment of all citizens, without any reservation, in all areas of life. It Const.P.76/2007, etc. 184 also requires: (a) equality of opportunity of education, training, employment and promotion in all services for all citizens, irrespective of their social or political status and influence; (b) equal treatment in all departments, without discrimination of any kind between rich and poor, big and small or workers and employers; (c) the right to a livelihood of every member of the Muslim state. It is the birthright of every person to have a guaranteed decent living and decent wage from the state. This calls indirectly for equitable distribution of wealth between all the members of the state on the principle of maximum circulation of the total wealth of the nation, discouraging, as far as possible, the concentration of wealth among a few people (59:7); and (d) it is also implicit in the above principle that for the political and social stability of society and state, matters of national interest must be decided through a process of consultation with the people, and all state affairs on all levels must be decided on the basis of the concept of consultation in its true sense, as envisaged by the Qura’n (42:38) and practiced by the Prophet Muhammad (PBUH).” 114. Corruption and corrupt practices, being a crime, if proved, against a ‘holder of public office’ takes away his qualification to contest the election because, prima facie, he has breached the trust of his electorate. Therefore, by inserting Section 33F in the NAO, 1999 by means of Section 7 of the NRO, 2007, possibility of raising objection on the qualification of a person to be elected or chosen as a member of the Parliament has been negated for limited purpose, in Const.P.76/2007, etc. 185 view of Article 62(f) of the Constitution, a person having been convicted/sentenced by the Court under the NAO, 1999 shall stand absolved as the case has been withdrawn against him or the proceedings have been terminated, pending in any Court including the High Court and Supreme Court, in appeal or whatever the case may be. Therefore, instead of following the command of Article 5 of the Constitution, Section 7 of the NAO has contravened Article 62(f) of the Constitution. It is true that Section 62(f) of the Constitution cannot be considered self-executory but if a person involved in corruption and corrupt practices has been finally adjudged to be so, then on the basis of such final judgment, his candidature on the touchstone of Article 62(f) of the Constitution can be adjudged to the effect whether he is sagacious, righteous, non-profligate, honest or Ameen. 115. It is true that on an objection against a candidate, without any support of evidence, the provisions of Article 62 of the Constitution cannot be pressed into service, because it is a provision of Constitution which is not self executory. Reference in this behalf may be made to Muhammad Afzal v. Muhammad Altaf Hussain (1986 SCMR 1736). 116. However, with reference to examining the vires of Section 7 of the NRO, 2007, in pursuance of which Section Const.P.76/2007, etc. 186 33F has been inserted in the NAO, 1999, with an approach that a ‘holder of public office’, as per the mandate of law, has been absolved without following the legal course from the allegations of corruption or corrupt practices, which also keeps the element of trust in its fold, and washed him from all such like sins, then how he can be considered qualified to contest the election because conviction and sentence under Section 9 of the NAO, 1999 has not been set aside legally, and whether such ‘holder of public office’, with a stigma upon him to be corrupt and involved in corrupt practices, can become a member of the Parliament, which is a sovereign body, representing the people of Pakistan. Article 62 (f) has been incorporated in the Constitution by means of President’s Order No.14 of 1985 (The Revival of Constitution Order, 1985) and it being a part of the Constitution has to be taken into consideration by the Courts, while examining the case of a convict, involved in corruption and corrupt practices, who has attained the status of innocent person by means of a law which has washed away his conviction/ sentence by withdrawal or termination of cases or proceedings, however, subject to furnishing strong evidence for establishing the allegation mentioned in Article 62(f) of the Constitution. As it has been noted hereinabove that this provision was inserted by a dictator but it is still continuing Const.P.76/2007, etc. 187 although five National Assemblies and Senate had been elected and completed their terms, but no effective steps, so far have been taken in this behalf. 117. Now turning towards the question under consideration in respect of insertion of Section 33F in the NAO, 1999 by means of Section 7 of the NRO, 2007, on the basis of which either the proceedings have been terminated or the cases have been withdrawn, as far as the withdrawal of proceedings under Section 494 Cr.P.C. is concerned, it has already been discussed hereinabove. while examining the implications of Section 2 of the NRO, 2007 wherein it was held that no withdrawal without the consent of the Court, seized with the case, is possible and this provision itself being discriminatory has been found in derogation to the fundamental rights enshrined in Article 25 of the Constitution and at the same time withdrawal of the criminal cases, particularly the murder cases, without hearing the heirs of victims. Likewise, while examining the vires of Section 6 of the NRO, 2007 it has been held that the legislature is not empowered to declare any judgment void ab initio, however, subject to following the principles, discussed hereinabove, which are lacking in the instant case. Const.P.76/2007, etc. 188 As far as principles of withdrawal of cases under the NAO, 1999 is concerned, Section 25 of the NAO, 1999 contains that:- “25. (a) Notwithstanding anything contained in section 15 or in any other law for the time being in force, where a holder of public office or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains acquired or made by him in the course, or as the consequence, of any offence under this Ordinance, the Chairman NAB may accept such offer and after determination of the amount due from such person and its deposit with the NAB discharge such person from all his liability in respect of the matter or transaction in issue: Provided that the matter is not sub judice in any court of law. (b) Where at any time after the authorization of investigation, before or after the commencement of the trial or during the pendency of an appeal, the accused offers to return to the NAB the assets or gains acquired or made by him in the course, or as a consequence, of any offence under this Ordinance, the Chairman, NAB, may, in his discretion, after taking into consideration the facts and circumstances of the case, accept the offer on such terms and conditions as he may consider necessary, and if the accused agrees to return to the NAB the amount determined by the Chairman, NAB, the Chairman, NAB, shall refer the case for the approval of the Court, or as the case may be, the Appellate Court and for the release of the accused. (c) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the Const.P.76/2007, etc. 189 concerned bank or financial institution, company, body corporate, co-operative society, statutory body, or authority concerned within one month from the date of such deposit.” Subject to exercise of above powers, a case can be withdrawn on the basis of entering into plea bargain, with all consequences. So far as, withdrawal from the prosecution under Section 31B of the NAO, 1999, is concerned, that is also subject to consent of the Court. Section 31B of the NAO, 1999 reads as follows:- “31B. Withdrawal from Prosecution. The Prosecutor General Accountability may, with the consent of the Court, withdraw from the prosecution of any accused Person generally or in respect of any one or more of the offences for which he is tried and upon such withdrawal: (i) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; and (ii) if it is made after a charge has been framed, he shall be acquitted in respect of such offence or offences.” 118. It is important to note that a person, who enters into plea-bargain as per the mandate of Section 25 of the NAO, 1999, would be disqualified to contest the election or to hold the public office. The language employed in Section 33F of the NAO, 1999, inserted by means of Section 7 of the NRO, 2007 does not indicate that the withdrawal had to take place, subject to any of the above provisions, either under Section Const.P.76/2007, etc. 190 25 or under Section 31B of the NAO, 1999, with the consent of the Court. 119. So far as withdrawal from the cases inside or outside the country, as per Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, is concerned, it would mean that the ‘holders of public office’ have been absolved from the charge of corruption and corrupt practices, therefore, by adopting such procedure, the legislative authority had transgressed its jurisdiction, because such powers are only available to the judiciary and the Constitution provides guarantee to secure the independence of the judiciary. Reference in this behalf may be made to Article 175 of the Constitution, which has been extensively interpreted in Mehram Ali’s case (PLD 1998 SC 1445) and Liaquat Hussain’s case (PLD 1999 SC 504). 120. A perusal of Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007 further reveals that while using the expressions ‘withdrawal’ and ‘termination’, it was not considered that in the cases of the offences, falling within the mischief of the NAO, 1999, charged against the ‘holders of public office’, no such judicial powers can be given to the legislature to withdraw or terminate the cases or proceedings. As far as, the words Const.P.76/2007, etc. 191 ‘termination of prolonged pending proceedings’, are concerned, these are alien to the system of criminal administration of justice, prevailing in the country under Criminal Procedure Code and the NAO, 1999. 121. In order to ascertain that as to how many persons have benefited from Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, the NAB was asked to furnish the details of the same. Accordingly, after a great deal of difficulty, the list was provided by the Chairman NAB, which indicates that there are two categories of the beneficiaries i.e. ‘holders of public office’; whose cases were pending (a) inside Pakistan and (b) outside Pakistan, in which US$ 60 million are involved for which a request for mutual legal assistance and civil party to proceedings, has been made by the Federal Government. As far as the category (a) is concerned, this Court, in exercise of its powers conferred under Article 187 read with Article 190 of the Constitution, may direct the NAB or any executive authority to supply requisite information. 122. So far as Article 190 of the Constitution is concerned, it imposes a constitutional obligation upon all the executives and judicial authorities, throughout the country to act in aid of the Supreme Court. Reference in this behalf may Const.P.76/2007, etc. 192 be made to Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84), but in implementing the judgment, in letter and spirit, regarding the cases outside the country, the Court may feel handicapped. Therefore, it would be an obligation and the duty of the executive to ensure initiation of proceedings according to law. 123. At this juncture, it may be noted that as per the list provided by the NAB, regarding cases falling within category (b) in which a huge amount is involved, it was also pointed out that to get back this money, subject to determination, belonged to the people of Pakistan, an amount ranging between 660 million to 2 billion rupees was spent but despite our directions, the Chairman NAB could not furnish the exact figure. This Court asked the learned Prosecutor General to furnish the details in respect of the amount involved in the cases out side the country, in pursuance of request for mutual legal assistance and civil party to proceedings, was made by the Federal Government. 124. In reply, the learned Prosecutor General NAB furnished the following details:- a) The Magistrate after considering the material opined that, prima facie, case has been made out and sent it to the Attorney General for Const.P.76/2007, etc. 193 launching the proceeding and also passed the order for freezing of account. b) The accused filed appeal against the said order, which was also dismissed being based on vague grounds. c) Our lawyer informed that the Attorney General in Geneva had decided not to prosecute the accused further and the Court expressed its dissatisfaction over it. d) The Magistrate in Geneva has passed an order for de-freezing of the money. In respect of item (c) above, the learned Prosecutor General NAB admitted that in the proceedings, reference was made to a letter sent by the then Attorney General for Pakistan (Malik Muhammad Qayyum). Whereas, Malik Muhammad Qayyum, the then Attorney General for Pakistan, who appeared on Court’s call, informed the Court that he had sent a letter to the Attorney General of Geneva, mentioning therein the relevant provisions of the NRO, 2007, regarding withdrawal of cases. Similarly, learned Acting Attorney General for Pakistan (Mr. Shah Khawar) appeared and stated that the request for mutual legal assistance and civil party to proceedings, was made by the Federal Government through the Attorney General, therefore, he would apprise the Court of the position of cases etc. According to him, so far as the Const.P.76/2007, etc. 194 amount lying in the Swiss Banks was concerned, 25 other individuals had also filed claims against it; however, a request was made by the former Attorney General for Pakistan (Malik Muhammad Qayyum) for withdrawal of money but as per his knowledge that request was not acceded to by the Attorney General Office of Switzerland as well as by the concerned Magistrate because their version was that they would deal with the case in accordance with their local laws. However, on 15th December 2009, the then Attorney General for Pakistan (Malik Muhammad Qayyum) again appeared on Court’s call; he read Section 7 of the NRO, 2007 with reference to withdrawal of cases and informed the Court that Constitution Petition No. 265 of 2008 (Asif Ali Zardari v. Government of Pakistan) was filed before the High Court of Sindh, whereby directions were sought for the Federation and the NAB, both, that they should withdraw all the cases pending in Pakistan and specifically proceedings in Geneva and in London and all others under the provisions of the NRO, 2007; the NAB authorities appeared before the Sindh High Court and made a statement that they would make efforts to withdraw the proceedings from all the Courts in and outside Pakistan; the Court, vide order dated 4th March 2008, directed to do the needful within a period of two weeks; he further stated that in pursuance of said order and Const.P.76/2007, etc. 195 also under the instructions of the then President, he issued a letter dated 9th March 2008 to the Attorney General of Geneva regarding withdrawal of proceedings. Copy of said letter has also been placed on record, which is reproduced hereinbelow in extenso:- “Re: P/11105/1997 and CP 289/97, Republic of Pakistan Vs/ Asif Ali Zardari and Jens Schlegelmich Dear Mr. Attorney General, We write you further to our meeting of 7 April 2008. We hereby confirm that the Republic of Pakistan having not suffered any damage withdraws in capacity of civil party not only against Mr. Asif Ali Zardari but also against Mr. Jens Schlegelmich and any other third party concerned by these proceedings. This withdrawal is effective for the above captioned proceedings as well as for any other proceedings possibly initiated in Switzerland (national or further to international judicial assistance). The Republic of Pakistan thus confirms entirely the withdrawal of its request of judicial assistance and its complements, object of the proceedings CP/289/97. Request for mutual assistance made by the then government, which already stand withdrawn, was politically motivated. Contract was awarded to pre- shipment inspection companies in good faith in discharge of official functions by the State functionaries in accordance with rules. The Republic of Pakistan further confirms having withdrawn itself as a damaged party and apologizes for the inconvenience caused to the Swiss authorities. Your sincerely, Sd/- Malik Muhammad Qayyum Attorney General for Pakistan.” 125. Despite our repeated queries that how request for withdrawal of mutual assistance and civil party to Const.P.76/2007, etc. 196 proceedings, initiated by the Federal Government, were withdrawn, no satisfactory answer was given to us. We have noticed that the Chairman NAB, who should have assisted the Court diligently, was reluctant to do so for one or the other reason. Therefore, having left with no option, the Federal Secretary, Law & Justice Division, Government of Pakistan was called upon to appear and place on record copies of the file, pertaining to the Swiss cases. His statement was as follows:- “a letter was addressed to Law Ministry by Mr. Farooq H. Naik, ASC (on behalf of Mohtarma Benazir Bhutto and Asif Ali Zardari), requesting therein that since this NRO, 2007 has been promulgated, as such all cases should be dropped, emphasizing upon the cases in Geneva Court; that application was processed and in routine placed before the then Minister Law (Zahid Hamid), who opposed the request and wrote a detailed note that it is not within their ambit so kindly contact the foreign office. After that file does not show anything”. 126. Likewise, Mr. Salman Faruqui, Secretary General to the President also appeared on Court’s call and informed that no such file existed in his office or at President’s Camp Office, Rawalpindi. 127. As far as issuing a letter to Attorney General of Geneva dated 7th April 2008 by Malik Muhammad Qayyum Const.P.76/2007, etc. 197 (the then Attorney General) is concerned, it seems that he had done so in his personal capacity, against the Rules of Business, 1973. In this behalf it may be noted that under Rule 14 of the Rules of Business, 1973, he was required to consult the Law, Justice and Human Rights Division on all legal questions, arising out of any case. Had he consulted the Law, Justice & Human Rights Division, he would have been advised not to send any letter in this regard because the Ministry of Law & Justice had already declined such request as was pointed out by the Secretary Law & Justice Division, whose statement has been referred to hereinabove. 128. It is also important to note that under sub-Rule (2) of Rule 14 of the Rules of Business, 1973, no Division shall consult the Attorney General except through the Law, Justice & Human Rights Division and in accordance with the procedure laid down by that Division. Beside it, stand taken by Malik Muhammad Qayyum that he was asked by the then President of Pakistan to do so, does not seem to be correct because under Rule 5(11-A) of the Rules of Business, 1973, verbal orders given by a functionary of the Government should, as a matter of routine, be reduced to writing and submitted to the issuing authority; if time permits, the confirmation shall invariably be taken before initiating Const.P.76/2007, etc. 198 action; however, in an exigency, where action is required to be taken immediately or it is not possible to obtain written confirmation of the orders before initiating actions, functionary to whom the verbal orders are given shall take the action so required and at the first available opportunity, obtain the requisite confirmation while submitting to the issuing authority a report of the action taken by him. The statement of Mr. Salman Faruqui, Secretary General to the President, reflects that no such file exists. Since Malik Muhammad Qayyum, the then Attorney General for Pakistan has done so in violation of the Rules of Business, 1973, therefore, he is liable to account for his such action. 129. Section 21 of the NAO, 1999 is a comprehensive provision of law, which spells out the nature of the request to a Foreign State for mutual legal assistance including; freezing of assets to the extent to which the assets are believed on reasonable ground to be situated in that State; confiscate articles and forfeit assets to the extent to which the articles or assets, as the case may be, are believed to be located in that State; transfer to Pakistan any such evidence, documents, things, articles, assets or proceeds realized from the disposal of such articles or assets, etc. We believe that to curb the culture of corruption and corrupt practices globally it has Const.P.76/2007, etc. 199 become necessary to enact such law on the basis of which the objects noted hereinabove could be achieved. 130. Learned counsel appearing for the petitioners impressed upon the arguments that on the one hand in pursuance of the NRO, 2007, the cases against the ‘holders of public office’ either have been withdrawn or terminated, who should have been found guilty for the corruption or corrupt practices (under Section 9 of the NAO, 1999) and sentenced to imprisonment as well as fine, and on the other hand, the ‘holders of public office’ who have been convicted and sentenced, and against their convictions, appeals pending either before the High Court or the Supreme Court, have been withdrawn. Similarly against those ‘holders of public office’, who were acquitted but against their acquittal proceedings were pending before the superior Courts, have also been illegally provided clean-chit by withdrawal or termination of the proceedings, contrary to constitution and the law, knowing well that this country is signatory to the UN Convention Against Corruption. A perusal of UN Convention Against Corruption indicates that the state had responsibility to develop and implement or maintain effective, coordinated anti-corruption policies; to take measures to prevent money laundering; to take measures for Const.P.76/2007, etc. 200 freezing, seizure and confiscation of proceeds of crime, derived from offences established in accordance with the Convention, or the property the value of which corresponds to that of such proceeds, property, equipment or other instrumentalities used in or destined for use in offences established in accordance with the Convention, etc.; State parties shall consider assisting each other in investigations of and proceedings in civil and administrative matters relating to corruption; as well as affording to one another the widest measure of mutual legal assistance in investigations, prosecutions, and judicial proceedings in relation to the offences covered by the Convention; prevention and detection of transfers of proceeds of crime. On the other hand, the promulgation of the NRO, 2007, instead of preventing corruption and corrupt practices, has encouraged the same. We have no option but to agree with the contention of the learned counsel for the petitioners, as the same is based on legal and logical premise. 131. We have already pointed out in the preceding paras of this judgment that under the provisions of NAO, 1999, there is a separate scheme for the withdrawal of cases. However, Article 45 of the Constitution confers power upon the President of Pakistan to the effect that the President shall Const.P.76/2007, etc. 201 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 cases under Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, are also not covered under Article 45 of the Constitution and in this behalf no other law has been referred to by any of the learned counsel appearing for the parties. There is no cavil with the proposition that the criminal Courts, including the Trial, Appellate and Revisional, are empowered to acquit, set aside the conviction/ sentence or quash the proceedings, but without adhering to this provision, the legislative authority, in its wisdom, has withdrawn or terminated the cases or proceedings, purportedly, in exercise of power, not vested in it. Consequently, all the ‘holders of public office’ have not been dealt with in accordance with law, principle of which has been enshrined in Article 4 of the Constitution. 132. At this juncture, it may occur in one’s mind that what are the judicial powers. This question has not been discussed in Mehram Ali’s case (PLD 1998 SC 1445) or in Liaquat Hussain’s case (PLD 1999 SC 504). However, one of the learned counsel has placed on record a judgment in the case of Brandy v. Human Rights & Equal Opportunity Const.P.76/2007, etc. 202 Commission (183 CLR 245) from the Australian jurisdiction passed by High Court of Australia, which is the Apex Court of the country. Relevant portion therefrom is reproduced hereinbelow for ready reference:- “9. Difficulty arises in attempting to formulate a comprehensive definition of judicial power not so much because it consists of a number of factors as because the combination is not always the same. It is hard to point to any essential or constant characteristic. Moreover, there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not (66 See Reg. v. Davison [1954] HCA 46; (1954) 90 CLR 353 at 368). These difficulties were recognized by the Court in Precision Data Holdings Ltd. v. Wills (67 [1991] HCA 58; (1991) 173 CLR 167 at 188-189): “The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power." One is tempted to say that, in the end, judicial power is the power exercised by courts and can only be defined by reference to what courts do and the way in which they do it, rather than by recourse to any other Const.P.76/2007, etc. 203 classification of functions. But that would be to place reliance upon the elements of history and policy which, whilst they are legitimate considerations, cannot be conclusive. 10. It is traditional to start with the definition advanced by Griffith CJ in Huddart, Parker and Co. Proprietary Ltd. v. Moorehead (68 [1909] HCA 36; (1909) 8 CLR 330 at 357) in which he spoke of the concept of judicial power in terms of the binding and authoritative decision of controversies between subjects or between subjects and the Crown made by a tribunal which is called upon to take action. However, it is not every binding and authoritative decision made in the determination of a dispute which constitutes the exercise of judicial power. A legislative or administrative decision may answer that description. Another important element which distinguishes a judicial decision is that it determines existing rights and duties and does so according to law. That is to say, it does so by the application of a pre-existing standard rather than by the formulation of policy or the exercise of an administrative discretion. Thus Kitto J in Reg. v. Gallagher; Ex parte Aberdare Collieries (69 (1963) 37 ALJR 40 at 43) said that judicial power consists of the "giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct". But again, as was pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd. (70 [1987] HCA 29;(1987) 163 CLR 140 at 149) , the exercise of non- judicial functions, for example, arbitral powers, may also involve the determination of existing rights and Const.P.76/2007, etc. 204 obligations if only as the basis for prescribing future rights and obligations.” 133. It is a principle of law that binding judgment, either of acquittal or conviction, can only be withdrawn by the Courts of law, therefore, the question for determination would be as to which forum is a ‘Court’ and which is not. Answer to this proposition has been given in Rehman Khan v. Asadullah Khan (PLD 1983 Quetta 52). In this very judgment the word ‘Court’ has been defined, after a considerable discussion, and it has been held that “hence, the Courts are only such organs of the State which follow legally prescribed scientific methodology as to procedure and evidence, in arriving at just and fair conclusions. As far as the definition of ‘Court’ is concerned, the Hon’ble late Mr. Justice Zakaullah Lodhi (the then Acting CJ) concluded that “the Courts are only such organs of State which administer justice under guidance of procedural laws as to conduct of proceedings as well as evidence; since such methodology helps the Court in administering justice, in accordance with law, therefore, all other bodies which have a free hand in the matter of deciding disputes are not Courts”. 134. Applying the above test on the provisions of Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, relating to withdrawal or termination of cases Const.P.76/2007, etc. 205 or proceedings, inescapable conclusion would be that the legislative authority of the President had acted contrary to judicial norms by allowing withdrawal and termination of cases and proceedings. However, as noted hereinabove, that on the basis of judicial interaction by the Court of law, having jurisdiction, appropriate orders can be passed. 135. Essentially withdrawal or termination of cases or proceedings in the manner as it has been done by means of contents of Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, does not fall within the definition of ‘pardon’, ‘amnesty’ or ‘commutation of sentence’. As per the Corpus Juris Secundum, Vol.67, ‘pardon’ and ‘amnesty’ has been defined as follows:- “Pardon.- a pardon is an executive act of grace which exempts and individual from the punishment the law inflicts for a crime, he has committed. It is full or partial accordingly as it absolves the recipient of all or only a portion of the legal consequences of his crime; and it is conditional or absolute accordingly as it does or does not make its operation or continued operation, depend on a condition precedent or subsequent.” “Amnesty.- Amnesty is an exercise of the sovereign power by which immunity to prosecution is granted by wiping out the offence supposed to have been committed by a group or class of persons prior to their being brought to trial.” Who May Exercise Authority.- Under constitutional provisions, the granting of pardons is within the Const.P.76/2007, etc. 206 province of the executive department of the State or nation, as the case may be. ……….……………………………………………………….. Legislature. As a general rule, the legislature cannot exercise the pardoning power where the constitution of the State does not confer such power on the legislature, but lodges it else where.” The expressions ‘pardon’ and ‘amnesty’ have been defined in Black’s Law Dictionary, 7th Edn. (1999), as under:- “Pardon.- The act or an instance of officially nullifying punishment or other legal consequences of a crime; a pardon is usu. granted by the chief executive of a government [the President has the sole power to issue pardons for federal offences, while State Governors have the power to issue pardons for State crimes].” “Amnesty.- A pardon extended by the Government to a group or class of persons, usu. for the political offences; the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted; unlike an ordinary pardon, amnesty is usu. addressed to crimes against State sovereignty – that is, to political offences with respect to which forgiveness is deemed more expedient for the public welfare then prosecution and punishment. Amnesty is usu. general, addressed to classes or even communities.” Admittedly, neither the ‘holders of public office’ have been pardoned nor amnesty has been given to them and similarly, their sentences have also not been commuted. Therefore, on the basis of such legislative document i.e. the NRO, 2007, Const.P.76/2007, etc. 207 which has no legal sanctity behind it, the benefit drawn by the ‘holders of public office’ is not sustainable. 136. Article 5 of the Constitution in unambiguous terms provides that loyalty to the State is the basic duty of every citizen; and obedience to the Constitution and the law is the inviolable obligation of every citizen, wherever he may be and of every other person for the time being within Pakistan. Therefore, while promulgating the NRO, 2007, the President has to conform to the norms and response to the voice of the Constitution, as per the mandate of Article 5 of the Constitution and any action on his part which negates the dictates of the Constitution including the fundamental rights shall be tantamount to promulgating a law which is neither acceptable by the nation or internationally, being not in line with the dictates of the Constitution. Therefore, the President who is under oath to protect the Constitution in all circumstances is not competent to promulgate an Ordinance in the name of national reconciliation, which is not permissible under any of the legislative lists i.e. Federal or Concurrent, as per Fourth Schedule of the Constitution, perusal whereof abundantly makes it clear that no law in the nature of the NRO, 2007 can be promulgated which instead of eliminating exploitation etc. amongst the citizens, as per Const.P.76/2007, etc. 208 Article 3 of the Constitution, tends to perpetuate corruption and corrupt practices as discussed above. There is no need to cite any judgment in this behalf except making reference to the case of Ch. Zahur Ilahi v. Zulfikar Ali Bhutto (PLD 1975 SC 383) to emphasize that it is the duty of every one to obey the Constitution. 137. It is the prerogative of the Parliament or Provincial Assembly to promulgate laws according to their respective spheres allocated to them, inter alia, taking into consideration the provisions of Article 227 of the Constitution, relating to promulgation of law according to Islamic provisions. Sub-Article (1) of Article 227 has two parts; according to its first part all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah. As per its plain reading, it refers to the laws which were existing when the Constitution of Pakistan, 1973 was enforced i.e. on 14th August 1973. As per its second part, which commands that no law shall be enacted which is repugnant to such injunctions. Clause (2) of Article 227 of the Constitution provides that effect shall be given to the provisions of clause (1) only in the manner provided in Part-IX of the Constitution, thus it leads to a reference to Article 228, which provides for composition of Council of Islamic Ideology, to Const.P.76/2007, etc. 209 which a reference may be made by the Parliament, the President or the Governors of the Provinces on a question whether a proposed law is or is not repugnant to the injunctions of Islam, in terms of Article 229 of the Constitution. On receipt of such question so referred under Article 229 of the Constitution, the Council has to inform within 15 days, from the receipt of the reference, to the House, the Assembly, the President or the Governor, as the case may be, of the period within which the Council expects to be able to furnish that advice. Article 230 of the Constitution further provides that where a House, a Provincial Assembly, the President or the Governor, as the case may be, considers that, in the public interest, the making of the proposed law, in relation to which the question arose, should not be postponed until the advice of the Islamic Council is furnished, the law may be made before the advice is furnished; but at the same time it is also provided that, where a law is referred for advice to the Islamic Council and the Council advises that the law is repugnant to the Injunctions of Islam, the House or, as the case may be, the Provincial Assembly, the President or the Governor shall reconsider the law so made. This is how the scheme of Part IX of the Constitution, relating to Islamic provisions, works. Const.P.76/2007, etc. 210 138. As it has been discussed hereinabove, by making reference to a book tilted as “Muhammad (PBUH) Encyclopedia of Seerah”, that principle of equality in Islam is an essential requisite of justice because when there is discrimination and partiality between the people, there is no justice. A code of Allah demands absolute equality of rights between the people without any discrimination or favouritism between man and man, and man and woman, on any count. Therefore, without any fear of doubt, it can be held that Article 25 of the Constitution, namely, all citizens are equal before the law and are entitled to equal protection of law and there shall be no discrimination on the basis of sex alone, has its origin in Quranic injunctions. Once it has been held that any law is void, insofar as, it is inconsistent with or in derogation of fundamental rights, therefore, it would also be against the injunctions of Islam and no such law shall be enacted which is repugnant to such Injunctions. 139. Thus for the foregoing reasons, we are of the opinion that the NRO, 2007 has been promulgated not in consonance with Injunctions of Islam in terms of Article 227(1) of the Constitution. We may add a word of caution since there is a tendency among some litigants to invoke such precepts of Islam as do not have universal acceptance even Const.P.76/2007, etc. 211 among the jurists and schools of Islamic Sharia, or who will invoke, on vague and unspecific grounds, recourse to the morality and conscience of the Constitution or to international conventions. These cannot be invoked as a matter of course, and certainly not to strike down formal legislation or executive action which is otherwise found to be within the scope of the Constitution and the law. The Constitution remains supreme and the primary reason for striking down the NRO, 2007 has been its being ultra vires the express and stated provisions of the Constitution. The observations relating to the application of Article 227 and to the morality and conscience of the Constitution are only further supportive observations that can be construed as a reconfirmation of the essential and inherent invalidity in the light of the other express provisions contained in the Constitution. The Primary touchstones remain the other provisions of the Constitution specified in the judgment. 140. This Court in more than one cases including the Azizullah Memon’s case (PLD 1993 SC 341), I.A. Sherwani’s case (1991 SCMR 1041) and Liaquat Hussain’s case (PLD 1999 SC 504) has held that different laws can be enacted for different sexes and age groups, but in the present case the basic question is as to the vires of the NRO, 2007 on the Const.P.76/2007, etc. 212 ground of being violative of Article 25 of the Constitution as it has provided protection to a certain class of persons against the crimes committed during a certain period. 141. It may be noted that newly inserted Section 33F of the NAO, 1999, under Section 7 of the NRO, 2007, has not only made classification between the general public and the ‘holders of public office’ but also amongst the ‘holders of public office’ on account of time period, as well, on the basis of which, benefit to a particular class i.e. the persons against whom the proceedings were initiated prior to 12th October 1999, has been extended on the criteria that prolonged proceeding are pending against them. At this juncture, it may be noted that prior to the NAO, 1999, Ehtesab Act, 1997 was in field, which was repealed on the promulgation of the NAO, 1999, as a result whereof, the proceedings initiated under the said Act, were protected by means of Section 33 of the NAO, 1999, which provides that any and all proceedings pending before the Court under the Ehtesab Act, 1997 shall stand transferred to a Court, as soon as it is constituted under this Ordinance, within the same Province, and it shall not be necessary to recall any witness or again to record any evidence, that may have been recorded. As far as Ehtesab Act is concerned, it was enacted on 31st May 1997 and was made effective w.e.f. 6th November 1990, so through the Const.P.76/2007, etc. 213 NRO, 2007 benefit of withdrawal or termination of the cases or proceedings has been extended to persons whose cases are covered between the period from 6th November 1990 and 12th October 1999. Interestingly, neither the benefit of the NRO, 2007 has been extended to the ‘holders of public office’, against whom cases were registered prior to 6th November 1990 nor to those ‘holders of public office’ against whom cases have been registered after 12th October 1999, although the cases were registered against such persons, even before and after these cutoff dates. Thus for this reason as well, all the ‘holders of public office’ against whom cases have been initiated before 6th November 1990 and after 12th October 1999 are also entitled for equal protection of law because they are similarly placed. Therefore, on the basis of intelligible differentia, no distinction can be drawn between both the groups, as such the above sub-classification within the class of ‘holders of public office’ is not based on an intelligible differentia, having no rational nexus to the object, sought to be achieved by the relevant classification under the NRO, 2007 as such, it, being a discriminatory law, deserves to be declared void ab initio [I.A. Sherwani’s case (1991 SCMR 1041)]. 142. It is also contended with vehemence by the petitioner’s counsel, particularly Mr. Abdul Hafeez Pirzda Const.P.76/2007, etc. 214 and Mr. A.K. Dogar, learned Advocates that the NRO, 2007 was promulgated against the morality and the conscience of the Constitution. To elaborate their argument, they relied upon R.S. Jhamandas’ case (PLD 1966 SC 229), Benazir Bhutto’s case (PLD 1988 SC 416) and D.S. Nakara’s case (AIR 1983 SC 130). 143. It is a universally accepted principle that Constitution of the country, may be written or otherwise, represents the voice of the people. The Constitution being a supreme law of the country provides for guarantee of peace, welfare and amity of the people, subject to their rights and obligations, against all forms of exploitation, socio-economic justice and principles of good governance, transformed in the principles of policy, to make the document as a living instrument, sufficient to cater for the present and future requirements of a nation. An instrument like the Constitution of 1973, to achieve the objects spelt out in the preamble, has the support of 176 million people, meaning thereby that this instrument has on its back moral strength of the nation, therefore, it would be their earnest desire and wish that everyone must show loyalty to the State and obedience to the Constitution and the law, as it has been envisaged under Article 5 of the Constitution. This object can be achieved if the moral or ethical values, the desires of the nation, have Const.P.76/2007, etc. 215 been transformed into a legally enforceable formulation. In instant case the Parliamentarians i.e. the representatives of the people of Pakistan, by their high moral conduct have already demonstrated, by not allowing the NRO, 2007 to become the Act of the Parliament, as manifested from the proceedings of the National Assembly, referred to hereinabove, as well as by the act of the Federal and Provincial Governments of not defending and supporting it. As it has been discussed earlier that will of the people of Pakistan was not included in the promulgation of the NRO, 2007 because despite availability of the National Assembly the same was not placed before it as the then legislative authority, being holder of highest office under the Constitution, is presumed to know that it is a legislation which is being promulgated against the conscience of the Parliamentarians representing the people of Pakistan and inconsistent with the constitutional provisions discussed hereinabove, including Article 63(1)(h) of the Constitution, which provides for disqualification of a person from being elected or chosen as, and from being, a member of the Parliament, if he has been convicted by a Court of competent jurisdiction on a charge of corrupt practices, moral turpitude or misuse of power or authority under any law for the time being in force. The Constitution has its own conscience being Const.P.76/2007, etc. 216 a living document, therefore, any law which negates any of the constitutional provisions shall be considered to be inconsistent with it. In R.S. Jhamandas’s case (PLD 1966 SC 229), this Court being conferred with the powers of judicial review in the orders passed by Land Commissioner under para 27 (1) of the West Pakistan Land Reforms Regulation, 1959 overruled the objection and observed that “what is hit is something which in the terms of the present Constitution, may well be described as the constitutional conscience of Pakistan”. This judgment supports the arguments that any law which is not promulgated in accordance with the Constitution would be considered against its conscience. As far as the question of morality is concerned, it has already been discussed hereinabove. However, note of it was also taken by this Court in Benazir Bhutto’s case (PLD 1988 SC 416) while examining the implications of Article 17(1) of the Constitution. An elector, while exercising his right of franchise, confers/places trust upon the representative, being chosen by him. If such representative betrays his trust by involving himself into corruption or the offence of moral turpitude, he disqualifies himself to continue as a member of the Parliament, according to the guidelines provided in Article 63(1)(h) of the Constitution. It is also to be noted that plain reading of Article 63(1)(h) of the Constitution reveals Const.P.76/2007, etc. 217 that it introduces two types of situation; one disclosing disqualification qua a candidate to become a member of the Parliament and; second disqualification qua the elected member of the Parliament. 144. It may be noted that Section 33F(1) in the NAO, 1999, inserted through Section 7 of the NRO, 2007, giving it overriding effect, by using non abstante clause, has allowed the prolonged pending proceedings to be withdrawn with immediate effect. In Black’s Law Dictionary, 7th Edn. (1999) word ‘proceeding’ has been defined as follows:- “(1) the regular and orderly progression of a law suit, including all acts and events between the time of commencement and the entry of judgment. (2) any procedural means for seeking redress from a tribunal or agency. (3) an act or step that is part of a larger action. (4) the business conducted by a Court or other official body; a hearing. …………” As per the above definition, the cases or proceedings have been withdrawn or terminated contrary to law, as it has been discussed hereinabove, initiated before 12th October 1999, including pending trial proceedings, conviction/acquittal appeals, etc., inasmuch as the transfer of pending proceedings under Section 33 of the NAO, 1999 have also been withdrawn or terminated. The manner in which Section 33F of the NAO, 1999, has been couched, suggests that the Const.P.76/2007, etc. 218 ‘holders of public office’ involved in any proceedings, not only under the NAO, 1999 but also in the cases under other laws i.e. Pakistan Penal Code, Anti-Terrorism Act, etc. have been withdrawn or terminated, considering the ‘holders of public office’ as a distinct class from the accused/convicts against whom similar proceedings are pending in any Court, with immediate effect. How the Constitution, as per its conscience coupled with morality, can allow this Court to maintain a law which is against all the norms of justice. As explained above, two things have become very significant; one is category of cases, initiated on a reference by the NAB inside or outside Pakistan and; second is that of the cases under any other law, for the time being in force covering all nature of crimes, heinous or minor. It may be noted that a ‘holder of public office’ when enters into Parliament, he enjoys moral authority as he has been elected by the constituents, enjoying their trust. But a ‘holder of public office’ whose case falls under disqualification prescribed in Article 63(1)(h) of the Constitution, which includes conviction by a Court of competent jurisdiction, on the charge of corrupt practices under Section 9 of the NAO, 1999, identifies persons, who are said to have committed the crime falling under this category. Second charge which falls under the definition of disqualification under Article 63(1)(h) of the Const.P.76/2007, etc. 219 Constitution is in respect of moral turpitude. The expression ‘moral turpitude’ has not been defined under the Constitution, however, in Black’s Law Dictionary, 6th Ed. its definition as under:- “The act of baseness, vileness or the depravity in private hand social duties which man owes to his fellow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man. Act or behaviour that gravely violates moral sentiment or accepted moral standards of community and is a morally culpable quality held to be present in some criminal offences as distinguished from others. The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita.” Similarly, in Webster Dictionary, the term ‘moral turpitude’ has been defined as “an act or behaviour that gravely violates moral sentiment or accepted moral standards of community.” In Law Lexicon by P. Remnatha Aiyar Vol.III, 3rd Ed. (2005), the term ‘moral turpitude has been defined as under:- “Anything done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness of depravity in private and social duties which a man owes to his fellowmen, or to society in general, contrary to accepted and customary rule of right and duty between man and man. ……………….. Const.P.76/2007, etc. 220 Everything done contrary to justice, honesty, modesty, or good morals is done with turpitude, so that embezzlement involves moral turpitude.” Likewise, in Corpus Juris Secundum, Vol.1, 8th Ed. the term ‘moral turpitude’ has been defined as under:- “ ‘moral turpitude’ is not a new term, but, rather, it is a term which is old in the law, and which has been used in the law for centuries. It is a term which has been the subject of many decisions and which has been much defined by Courts. ……………..” 145. Third category relates to the cases of misuse of power or authority under any law for the time being in force. This category also squarely falls within the definition of corruption and corrupt practices as defined in Section 9 of the NAO, 1999. 146. Thus question arises, whether a law which instead of eliminating, has encouraged the offence of corruption and moral turpitude, can at all not be enacted in exercise of powers under Article 89 of the Constitution; whether promulgation of such a law would not be against the morality and the conscience of the Constitution; whether the constituents, in exercise of their right of franchise, have not made out a case to strike down such a law, which is not only contrary to the constitutional provisions, discussed Const.P.76/2007, etc. 221 hereinabove, but also calls upon this Court to strike down such law as they believe that on account of their high moral and ethical codes, it has become their enforceable legal formulations [D.S. Nakara’s case (AIR 1983 SC 130)]; and lastly whether it is not against the conscience of the Constitution which prohibits enactment and promulgation of any law inconsistent with its provisions. Answer to all above questions is in affirmative and could not be else. 147. It is mentioned in Section 33F of the NAO, 1999 inserted by means of Section 7 of the NRO, 2007 that ‘holders of public office’ shall also not be liable for any action in future as well for acts having been done in good faith before the said date. This immunity from future actions has also been provided contrary to the Constitution and the law. There are two provisions in the Constitution i.e. Article 12, according to which protection to a person against retrospective punishment has been made permissible; and Article 13, which protects a person against double punishment and self-incrimination. Thus, operation of Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007 seems to be in contravention to the mandate of Section 31B of the NAO, 1999, which provides mechanism for withdrawal from the prosecution of any accused person in the manner prescribed therein, but as far as the protection Const.P.76/2007, etc. 222 against double punishment is concerned, it would only be available to a person who has already been punished but criminal proceeding right from the date of commencement up to final judgment has been withdrawn or terminated, making such a person as innocent, as he was before initiation of such proceedings at investigation stage. So far as Article 13 of the Constitution is concerned, no case can be made out under this Article of the Constitution against double punishment or self incrimination. It seems that the ‘holders of public office’ have been saved from future action for the crimes committed by them as well as the crimes charged against them on the basis of reference filed by the NAB including corruption and corrupt practices. Neither the Constitution nor any other law permits the legislative authority i.e. the President to promulgate a law, which fails to stand the test of Articles 12 and 13 of the Constitution. 148. By promulgation of the NRO, 2007, the ‘holders of public office’ have been saved from being charged of certain acts committed by them in good faith. Essentially, Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, in generality, is dealing with the persons, facing criminal charges under any provision of law or the crime defined under the NAO, 1999. As far as the last Const.P.76/2007, etc. 223 mentioned law is concerned, under it no exception has been created for the crimes committed under good faith except under some of the provisions of PPC, whereby protection has been given for committing an act in good faith. Section 52 of PPC defines the expression ‘good faith’ as ‘nothing is said to be done or believed in ‘good faith’, which is done or believed without due care and attention’. In Black’s Law Dictionary, 7th Edn. (1999), the expression ‘good faith’ has been defined as ‘a state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business or (4) absence of intent to defraud or to seek unconscionable advantage – also termed bona fide”. In Industrial Development Bank of Pakistan v. Saadi Asamatullah (1999 SCMR 2874), the expression ‘good faith’ has been defined as ‘an act is said to be done in good faith when it is done with due care and attention’. Similarly in Fazal Ullah Siddiqui v. State (2006 SCMR 1334), it has been held that ‘nothing done without due care and caution can be accepted as having been done in good faith’. 149. It may also be noted that a public servant performing duty on behalf of State has been provided immunity in different statutes with reference to the nature of the crime etc. This expression has been used in Section 36 of Const.P.76/2007, etc. 224 the NAO, 1999, which provides that no suit, prosecution, or any other proceedings shall lie against the Federal Government, Provincial Government, Chairman NAB, or any other member of the NAB or any person exercising any power or performing any function under this Ordinance or the Rules made under it for any act or thing, which has been done in good faith or intended to be done under this Ordinance or the rules thereof. As far as the persons against whom proceedings or investigation are pending before the Court of law including a High Court or Supreme Court, cannot be said to have committed the crime, in good faith, either heinous or minor in nature, as well as relating to corruption or corrupt practices, inside and outside the country. The legislature while enacting a law has to adopt certain measures before extending immunity to the functionaries of the State but at least we can say that an accused or convict cannot enjoy protection for offences, noted hereinabove, or for his deeds, in the garb of good faith. 150. Another important aspect of Section 7 of the NRO, 2007 is that while inserting Section 33F in the NAO, 1999, a mechanism has also been provided for ‘withdrawal and termination of prolonged pending proceedings, initiated prior to 12th October, 1999’. One of the so-called reasons, prevailed upon the legislative authority to promulgate such Const.P.76/2007, etc. 225 provision on account of ‘prolonged pending proceedings initiated prior to 12th October 1999’. It may be noted that in the preamble of the NRO, 2007, besides other things, the prolonged pending proceedings was never the consideration. It does not seem to be that on account of prolonged pending proceedings, initiated prior to 12th October 1999, the cases have been withdrawn as according to it, necessity to promulgate the NRO, 2007 is “to promote national reconciliation, foster mutual trust and confidence amongst ‘holders of public office’ and to remove the vestiges of political vendetta and victimization, to make the election process more transparent and to amend certain laws for that purpose and for matters connected therewith and ancillary thereto”. Assuming that the conditions so mentioned therein for terminating the cases being prolonged pending proceedings is acceptable, then why the cases which have been finalized, resulting in the conviction or acquittal and proceedings in respect thereof were pending, have been withdrawn. Therefore, instead of withdrawing or terminating the proceedings, mechanism should have been followed for the disposal of cases by increasing manpower of investigating agencies and the number of Courts etc. In Liaquat Hussain’s case (PLD 1999 SC 504), somehow identical objection was raised on the creation of Military Const.P.76/2007, etc. 226 Courts and this Court while disposing of the matter, provided a mechanism to monitor the proceedings with a view to ensure expeditious disposal of cases pending in Courts. Relevant para therefrom has already been reproduced hereinabove. In addition to it, prolonged pending proceedings, in no way, can constitute a ground for the withdrawal or termination of the proceedings, in view of discussion made hereinabove elaborately. More so, Article 37 of the Constitution casts a duty upon the State to ensure inexpensive and expeditious justice, therefore, the Government by invoking this provision can increase the number of Courts and paralegal staff to ensure expeditious disposal of the cases of persons charged for various offences. 151. This Court while interpreting different provisions of the Constitution has an authority to make an observation with an object that the State must realize its duty. As in the case in hand, the Court is empowered to pass appropriate orders, as it deemed fit under Article 187 of the Constitution as well as keeping in view the earlier precedents providing for monitoring of the cases pending in the Courts and the increase in number of Courts. As far as the supervision of the High Court is concerned, it has already been discussed hereinabove and for comprehending powers of this Court under Article 187 of the Constitution, reference can be made Const.P.76/2007, etc. 227 to Sabir Shah’s case (PLD 1995 SC 66). In this case, Chief Justice Sajjad Ali Shah (as he then was) while discussing the powers of this Court, observed as under:- “22. In support of the proposition that this Court has more than ample powers to do complete justice, as contemplated under Article 187 of the Constitution, reference can be made to Order XXIII Rule 6 of the Supreme Court Rules, 1980, which also provides that nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. This rule is consistent with the spirit and amplitude of the jurisdiction and power as conferred upon it by the Constitution.” Likewise, Justice Saleem Akhtar (as he then was) observed as under:- “10. The Supreme Court is the apex Court. It is the highest and the ultimate Court under the Constitution. In my view the inherent and plenary power of this Court which is vested in it by virtue of being the ultimate Court, it has the power to do complete justice without in any manner infringing or violating any provision of law. While doing complete justice this Court would not cross the frontiers of the Constitution and law. The term "complete justice" is not capable of definition with exactitude. It is a term covering variety of cases and reliefs which this Court can mould and grant depending upon the facts and circumstances of the case. While doing complete justice formalities and technicalities should not fetter its power. It can grant ancillary relief, mould the Const.P.76/2007, etc. 228 relief within its jurisdiction depending on the facts and circumstances of the case, take additional evidence and in appropriate cases even subsequent events may be taken into consideration. Ronald Rotunda in his book "Treatise on Constitutional Case Substance" (Second-Edition), Volume 2 at page 90 has stated that "The Supreme Court is an essence of a continual Constitutional convention". The jurisdiction and the power conferred on the Supreme Court does empower it to do complete justice by looking to the facts, circumstances and the law governing a particular case. Article 187 does not confer any jurisdiction. It recognises inherent power of an apex Court to do complete justice and issue orders and directions to achieve that end. Inherent justification is vested in the High Court and subordinate Courts while dealing with civil and criminal cases by virtue of provisions of law. The inherent jurisdiction of this Court to do complete justice cannot be curtailed by law as it may adversely affect the independence of judiciary and the fundamental right of person to have free access to the Court for achieving complete justice. This enunciation may evoke a controversy that as Article 175(2) restricts Article 187 it will create conflict between the two. There is no conflict and both the Articles can be read together. The conflict in the provisions of the Constitution should not be assumed and if apparently there seems to be any, it has to be interpreted in a harmonious manner by which both the provisions may co-exist. One provision of the Constitution cannot be struck down being in conflict with the other provision of the Constitution. They have to live together, exist together anti operate together. Therefore, while Const.P.76/2007, etc. 229 interpreting jurisdiction and power of the superior Courts one should look to the fundamental rights conferred and the duty cast upon them under the Constitution. A provision like Article 187 cannot be read in isolation but has to be interpreted and read harmoniously with other provisions of the Constitution. In my humble view this Court while hearing appeal under a statute has the jurisdiction and power to decide the question of vires of the statute under which the appeal has arisen and can even invoke Article 184(3) in appropriate cases.” 152. It is worth to mention here that by means of Section 33F of the NAO, 1999, inserted through Section 7 of the NRO, 2007, cases or proceedings have been withdrawn or terminated, without spelling out the reasons, namely, as to whether an accused himself is responsible for causing the prolonged delay or the prosecution or the Courts have failed to decide the case expeditiously. After the promulgation of National Judicial Policy, 2009 by the National Judicial Policy Making Committee, despite strict monitoring of the proceedings of the Court, we have observed that the Courts and the Investigating Agencies are taking all necessary steps to dispose of the cases expeditiously according to law but it is a hard fact that accused, for one or other reasons, known to them, attempt to protract the proceedings. Const.P.76/2007, etc. 230 153. By means of Section 3 of the NRO, 2007, amendment has been made in Section 39 of the Representation of the People Act, which reads as under:- “3. Amendment of section 39, Act LXXXV of 1976. (1) In the Representation of the People Act, 1976 (LXXXV of 1976), in section 39, after sub-section (6), the following new sub-section (7) shall be added, namely:- “(7) After consolidation of results the Returning Officer shall give to such contesting candidates and their election agents as are present during the consolidation proceedings, a copy of the result of the count notified to the Commission immediately against proper receipt and shall also post a copy thereof to the other candidates and election agents.” Intention enshrined in above said Section cannot be doubted but it seems that this provision is cosmetic in its nature, comparing to Sections 2, 6 and 7 of the NRO, 2007. However, the benefit of the same cannot be drawn immediately by a candidate, who is always interested to get the certified copy of the result and such arrangement is already available in Section 38 of the Representation of the People Act, 1976, which provides that the Presiding Officer shall give a certified copy of the statement of count and the ballot paper account to such of the candidates, their election agents or polling agents as may be present and obtain a receipt for such copy because as far as the consolidation of a result is concerned, it takes place subsequent to polling day, as per Const.P.76/2007, etc. 231 the schedule fixed by the Election Commission. If at all, the intention of the legislature was to ensure transparent election free from rigging of any kind, then emphasis should have been for the strict compliance of Section 38 (11) of the Representation of the People Act, 1976, which reads as under:- “38. Proceedings at the close of poll .- ……………………………………………………… …………………………………………………….... (11) The Presiding Officer shall give a certified copy of the statement of the count and the ballot paper account to such of the candidates, their, election agents or polling agents as may be present. ……………………………………………………… ……………………………………………………....” 154. Mr. Shaiq Usmani, learned Amicus curiae started his arguments by saying that he would draw the canvas before the Court, which is necessary to be seen, that what possible arguments could be raised in defence of the NRO, 2007 by the other side. He argued that in criminal justice system, there are two systems of justice; one is retributory and the other is restorative; first one entails prosecution and punishment, just very simple, whereas restorative does not believe in prosecution or punishment rather it tries to resolve the issues through accountability. According to him if, presumably, it was an act of amnesty by means of the NRO, 2007, then the question arises whether it was legitimate and if so, could it justify the derogation from the fundamental Const.P.76/2007, etc. 232 rights. He added that amnesty is manifestation of restorative justice and is resorted to, with a view to end the internal conflict on the basis of negotiation with the leaders, who committed the crimes, either political or the other. He stated that there are two further types of amnesties; one is compromised by the two parties for their mutual interest; and other is accountable amnesty where there is open admission of guilt, because victims do not, necessarily, always want punishment, but certainly want the admission of guilt. According to his version, the only legitimate amnesty is the one which is accountable, so in the case in hand, the amnesty, if it could be called as amnesty, is not a legitimate one, hence not permissible; therefore, on this ground, too, it falls. He further stated that the NRO, 2007 is violative of Article 25 of the Constitution on the ground of discrimination because on the face of it, it is discriminatory; therefore, looking at the I.A. Sherwani’s case (1991 SCMR 1041) there was a definite classification of people. He argued that the NRO, 2007 is violative of the salient features of the Constitution and principle of trichotomy of powers, as it is the domain of the judiciary to see whether a criminal case should be withdrawn or not, inasmuch as there is encroachment upon the domain of judiciary, which is certainly violative of the principle of trichotomy of powers, Const.P.76/2007, etc. 233 as such it is void. He strenuously argued that corruption is nothing but theft of public money; when the National Assembly cannot make a law to condone theft, how can the President issue an Ordinance to condone theft. While referring to Section 21 of the NAO, 1999, he argued that Attorney General has no power at all to withdraw the cases; therefore, anything done by the then Attorney General, is of no consequences. 155. The above arguments of the learned Amicus Curiae have been considered and need no further deliberations being comprehensive in their form, in view of above discussion on different aspects of the case noted in the forgoing paras. 156. Mian Allah Nawaz, another learned Amicus Curiae submitted his formulations on the NRO, 2007 by saying that man is a complex, complicated in it; there is no definition of man; even the Allah Almighty has said that the creation, which is being sent to this globe, is flawed, and is a blend of two great positive and negative reservoirs of instincts; one instinct is goodness, the good, the tranquility, peace; and the other is greed, lust, bloodshed etc.; so the man is beautiful combination of both. He quoted the saying of Jeremy Bentham, a great philosopher, that ‘if you keep twenty Const.P.76/2007, etc. 234 wolfs at one place and twenty men at the same place, it would be difficult to manage the men’. According to him another philosopher has rightly said that ‘law is necessity of the man’ because he can’t discipline himself; he can’t undertake his own examination; man is such a creature that he needs three instincts, i.e. instinct of preservation, instinct of peace and the instinct of law, which compel him to travel on the path of law. He added that laws are those minimum requirements, patterns, modes; which if recognized, each man will be saved from the warring, lust and greed; and this is beginning of the law. According to him law is not necessarily be a divine law, it may be a temporal law and it may be a secular law but whatever it is, the main thing is that it is for the peace, tranquility and goodness. He stated that any law, which violates the ‘intrinsic value of the law’ or ‘intrinsic value of behaviour’, is not a good law, and it has to be struck down otherwise it would create simple anarchy, lust, greed and would lead to monumentally horrendous things. He argued that if the basic fundamental philosophy of law was not kept in view, neither the Constitution nor the law or the problem facing the nation could be understood and no solution could be found. In this behalf he referred to Surah Al-Baqarah from the Holy Quran. According to him the morality of law has Const.P.76/2007, etc. 235 two aspects to be assumed as sine qua non; one is internal voice of a human being and the other is external voice i.e. conduct of a human being; these two can be called as a soul, conscience, discipline, etc. of human being; as the same are contemporaneous not simultaneous; naturally embodied in the human being, who is to be tested on these touchstones. 157. With regard to NRO, 2007, he stated that the NRO, 2007 is not only a bad law but it’s a dirty law, a kleptocratic law, which converts the very form of the Government. While explaining the word ‘kleptocracy’, he stated that it is a classical manifestation of evolution of gradual supremacy of satanic forces. He further stated that there is not a single provision in the Constitution, validating the NRO, 2007 or giving a conscience to it under any statute, because our Constitution is based upon morality of Muslims. According to him the NRO, 2007, from the beginning to end, after preamble, is a master piece of savagery, therefore, from the commencement to finish, irrespective of certain cosmetic provisions, it is a so bad law that it must be struck down, as a piece of paper, which never deserved to be put on the statute book. Const.P.76/2007, etc. 236 158. The above arguments of the learned amicus curiae are self-explanatory; therefore, there is no need to further dilate upon them. 159. Mr. M. Sardar Khan, learned amicus curiae, made his submissions to the effect that the NRO, 2007 is not only discriminatory and inconsistent with fundamental rights, enshrined in Article 25 of the Constitution but also in conflict with other Articles of the Constitution such as Articles 62, 63 and 175, therefore, it is not a valid law rather it is a bad law. According to him Article 5 of the Constitution postulates that it is inviolable obligation of every citizen to obey the Constitution and the law, whereas, Article 8 (2) prohibits the State from making any law which takes away or abridges fundamental rights conferred by the Constitution; therefore, if a law does so, then it shall be void, as such, the NRO, 2007, so promulgated, seems to be an intentional violation and disobedience of the Constitutional provision, contained in Article 8 of the Constitution. He further contended that Article 2A of the Constitution requires that the authority of Allah Almighty, conferred upon the chosen representatives of the people of Pakistan, is to be exercised by them in accordance with the Constitution and within the limits Const.P.76/2007, etc. 237 prescribed by Allah Almighty. According to him various provisions of the NRO, 2007 i.e. 2, 3, 4, 6 & 7, are not valid provisions as they are void for various reasons, including, being against the Injunction of Islam, violative of the mandate of Article 175 of the Constitution, and repulsive to the provisions of Article 62 & 63 of the Constitution. He argued that the object of this law, for all intents and purposes, does not seem to be ‘reconciliation’ but it paves the way and facilitates to those, charged with corruption and corrupt practices, plundering of national wealth and fraud, to come back, seize and occupy echelons of power again; its aim seems to be to legalize corruption and the crimes committed by those in power, in the past. He further argued that Courts have been deprived, by virtue of this law, from their judicial functions by conferring powers to the administrative authority. He contended that the NRO, 2007, besides being discriminatory, has also been applied discriminately. 160. With regard to Article 247 of the Constitution, learned counsel contended that this Court has always favoured application of fundamental rights to ensure that there should not be any discrimination amongst citizens and the State shall not make any law which takes away or Const.P.76/2007, etc. 238 abridges the rights so conferred. In this behalf he relied upon the case of Government of NWFP v. Muhammad Irshad (PLD 1995 SC 281), wherein Regulation No. I of 1975 dated 26th July 1975, known as Provincially Administered Tribunal Areas Criminal Laws (Special Provisions) Regulation, 1975 was declared void, being inconsistent with the fundamental rights guaranteed under Article 25 of the Constitution. On the arguments that under Article 8(1) of the Constitution, examination of Regulation, framed by the President or the Governor in exercise of powers under sub-Articles (4) and (5) of Article 247 of the Constitution, is not included in the expression ‘any law’, this Court maintained the judgment of the High Court, in the following terms:- “20. It seems difficult to subscribe to the view canvassed by Mr. Samadani that the expression `any law' as used in Article 8(1) does not encompass a Regulation made under Article 247(4) or that the term `State' as occurring in Article 7 does not include the President and the Governor. Article 8(1), ibid, reads as follows: "Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void." The word `any' is ordinarily used to enlarge the amplitude of the term to which it is attached and there seems to be no reason why the expression `any law' as occurring in Article 8(1) be so narrowly construed as to Const.P.76/2007, etc. 239 exclude from its purview a Regulation which possessed the efficacy of law in a part of Pakistan, particularly when its effect has been extended to all customs and usages which have the force of law. Article 7 falls in Part II of the Constitution which bears the rubric Fundamental Rights and Principles of Policy. The said Article reads as follows: "7. Definition of the State.- In this Part, unless the context otherwise requires, `the State' means the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess." It will be noticed that the definition of the `State' as given in this Article is fairly wide; on its plain reading it would appear to encompass all authorities which perform executive and legislative functions in any part of the country. So far as the Areas are concerned, the President and the Governor while exercising their powers under Article 247 stand in the position of the Federal and the Provincial Governments. There is therefore no reason why they should be excluded from the definition of the `State' so far as the Areas are concerned. In fact, to hold otherwise, would tend to deprive a sizeable part of the Pakistan citizenry of the Fundamental Rights enshrined in the Constitution which could never have been the intention of the Constitution-makers.” 161. Learned counsel, while heavily relying upon the above judgment, stated that this Court has not shown any flexibility, while interpreting constitutional provisions, dealing with the case pertaining to Tribal Area, where the Const.P.76/2007, etc. 240 President and the Government have dominating authority to issue regulation, then as to why not the NRO, 2007 be declared ultra vires to the Constitution, void ab initio and of no consequences for the reason discussed hereinabove. 162. We are in agreement with the above arguments of the learned counsel. 163. Raja Muhammad Ibrahim Satti, learned counsel appearing in Civil Appeal No. 1094 of 2009, however, supported the NRO, 2007 for the following reasons :- i) On 12th October 2007, while admitting the Constitution Petition, challenging the NRO, 2007, its operation was not suspended, therefore, presumably it was a good law. ii) On 27th February 2008, order dated 12th October 2007 was modified without declaring the NRO, 2007 ultra vires the Constitution, as such presumably the NRO, 2007 is a valid law. iii) The President, in exercise of powers under Article 89 of the Constitution, on having been satisfied that the circumstances prevailed for issuing the NRO, 2007, exercises his authority with immediate effect and it is no body’s case that the NRO, 2007 has been issued by the President in exercise of powers, beyond the scope of the Const.P.76/2007, etc. 241 Constitution, therefore, it being a valid law deserves to continue. iv) The NRO, 2007 along with other Ordinances was not declared ultra vires the Constitution at the time of examination of the validity of Proclamation of Emergency of 2007 and Provisional Constitution Order, 2007 by this Court in Sindh High Court Bar Association’s case (PLD 2009 SC 879), as by extending its constitutional life, it was sent to the Parliament for examination and making it an Act of the Parliament, therefore, it may be presumed that this Court having ample powers, refused to exercise the same for declaring the NRO, 2007 ultra vires the Constitution. v) Appellant is entitled for the same relief, which has been extended to the beneficiaries, between the period from 5th October 2007 to 1st February 2008, so that he is not discriminated. 164. As far as the reference of the learned counsel for the appellant to order dated 12th October 2007 is concerned, on this date notice was issued to the respondents and while examining the request of the counsel for the petitioners for suspending the operation of the NRO, 2007, it was observed that “ordinarily the provisions of a law cannot be suspended because this Court can only suspend a particular order, judgment Const.P.76/2007, etc. 242 or action, etc.; however, we are inclined to observe in unambiguous terms that any benefit drawn or intended to be drawn by any of the public office holder shall be subject to the decision of the listed petitions and the beneficiary would not be entitled to claim any protection of the concluded action under Sections 6 and 7 of the impugned Ordinance, under any principle of law, if this Court conclude that the impugned Ordinance and particularly its these provisions are ultra vires the Constitution. Therefore, the argument of the learned counsel is of no help to him. 165. Next crucial date pointed out by the learned counsel is 27th February 2008, when order dated 12th October 2007 was modified, which does not mean that the law has been validated. In addition to it, it may be stated that the appellant Fazal Dad Jat was not a party in those proceedings, therefore, this argument has no substance. 166. So far as the argument of the learned counsel regarding referring of the NRO, 2007 along with other Ordinances to the National Assembly in the case of Sindh High Court Bar Association’s case (PLD 2009 SC 879), is concerned, reasons in this behalf have already been explicitly explained therein and discussion in this regard had already taken place hereinabove, whereby, it has been held that this Const.P.76/2007, etc. 243 Court believes in trichotomy of powers, therefore, instead of examining the constitutionality of such Ordinances, including the NRO, 2007, for the detailed reasons, mentioned in the judgment, the Ordinances along with the NRO, 2007 were sent to the National Assembly for examination. It is an admitted fact that the National Assembly had not made the NRO, 2007 as an Act of the Parliament, although it was tabled before it; therefore, the argument of the learned counsel that its constitutionality being inapt is not acceptable. 167. As far as the question of extending relief under the NRO, 2007 to the appellant and the convicts, who have filed applications being Human Right Case Nos. 14328-P to 14331-P & 15082-P of 2009, is concerned, it is to be observed that it depends upon the final verdict about the constitutionality of the NRO, 2007. 168. Now turning towards the arguments of the learned counsel about the Ordinance issuing powers of the President, there is no denial to it, but subject to discussion made hereinabove on this subject. 169. It may be noted that the President has an authority under Article 89 of the Constitution to promulgate an Ordinance, but cannot issue temporary legislation, which Const.P.76/2007, etc. 244 the Parliament is not empowered to do. A thorough perusal of the Federal and the Concurrent Lists persuades us to hold that the President was not empowered to issue the NRO, 2007 as the subjects covered by its Section 2, 6 and 7 fall beyond the scope of these lists. As far as its manifestations is concerned, it has already been done by the Parliament before whom the NRO, 2007 was placed, but the same was withdrawn subsequently under Rule 139 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, as impliedly the National Assembly refrained itself from making it as an Act of Parliament. Inasmuch as, the actions taken from the date of its inception till the expiry of its constitutional life of 120 days under Article 89 of the Constitution from 5th October 2007 to 1st February 2008, benefits derived by some of the person have not been protected, and the Government (either Federal or Provincial) has also not insisted to allow retention of the benefits derived out of it to the accused persons during the said period. More so, none of the beneficiaries, who have drawn benefit during the said stipulated period from 5th October 2007 to 31st July 2009, when vide judgment dated 31st July 2009, all the Ordinances were declared to have been Const.P.76/2007, etc. 245 shorn of permanency, have not come forward to protect their benefits, although hearing of these petitions has been widely publicized in print and electronic media. Thus in view of theory of ultra vires, explained in Cooley’s Constitutional Limitations, reference of which has been made by Chief Justice Cornelius (as then he was) in Fazlul Quader Chowdhry v. Muhammad Abdul Haque (PLD 1963 SC 486), wherein it has been observed that “for the constitution of the State is higher in authority than any law, direction, or order made by anybody or any officer assuming to act under it, since such body or officer must exercise a delegated authority, and one that must necessarily be subservient to the instrument by which the delegation is made; in any case of conflict the fundamental law must govern, and the act in conflict with it must be treated as of no legal validity”, we are of the opinion that the NRO, 2007 is void ab initio, therefore, the parties who have derived benefit shall not be entitled for the same from 5th October 2007 and all the cases withdrawn under Section 2, 6 & 7 of the NRO, 2007 shall stand revived immediately. The Courts seized with the matters shall proceed to decide the same, considering that the NRO, 2007 was never promulgated. Const.P.76/2007, etc. 246 170. It is also to be noted that while examining the vires of a statute the Court is free to examine the same on the touchstone of different constitutional provisions as it has been held in Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602): “52. In this behalf it may be noted that this Court, in exercise of constitutional Jurisdiction conferred upon it under various provisions of the Constitution, including Articles 184, 185, 186, 187(1) and 212(3), enjoys enormous power of judicial review. Besides, it is well-settled by this time that being the apex Court, it has also been vested with inherent Powers to regulate its own authority of judicial review, inasmuch as, that in Zafar Ali Shah v. Pervaiz Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), it has been held by the full Court that "so long as the superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law which comes for examination before the superior Courts. " Argument by one of the learned counsel that in the absence of violation of any of the fundamental rights, guaranteed by the Constitution, section 2-A of the STA, 1973 can be struck down only if in derogation of Article 8 of the Constitution and there is no other specific provision in the Constitution, authorizing this Court to exercise powers in this behalf is untenable on the face of it. A reference to the case of Mr. Fazlul Qader Chowdhry (ibid) would indicate that "superior Courts have inherent duty, together with the appurtenant power, Const.P.76/2007, etc. 247 to ascertain and enforce the provisions of the Constitution in any case coming before them." In the case of A.M. Khan Leghari v. Government of Pakistan (PLD 1967 Lahore 227), it has been emphasized that " ----------in cases of conflict between the supreme law of the Constitution and an enactment it is the duty of the superior Courts as its protectors and defenders to declare the enactment in question as invalid to the extent of its repugnancy with the constitutional provision in the absence of any bar either express or implied." Similarly, in Messrs Electric Lamp Manufacturers of Pakistan Ltd. v. The Government of Pakistan (1989 PTD 42), it has been held that "the Parliament in England is sovereign in the real sense and it is not subject to any constraints as in England there is no written Constitution, whereas in Pakistan the Parliament is subject to constraints contemplated by the Constitution in accordance with the procedure provided therein, but so long as it is not amended the Parliament has to act within its four corners; so a statute or any of its provisions can be struck down on the ground of being ultra vires of the Constitution." Likewise, in the case of Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), it is held that "-----------when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examine the legislative competence or such other limitations as are in the Constitution; and while declaring a legislative instrument as void, "it is not because the judicial power is superior in degree or dignity to the legislative power" but because it enforces the Constitution as a paramount law either where a Const.P.76/2007, etc. 248 legislative instrument is in conflict with the constitutional provision so as to give effect to it or where the Legislature fails to keep within its constitutional limits." In the case of Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504), the conclusion was that "Court cannot strike down a statute on the ground of mala fides, but the same can be struck down on the ground that it is violative of a constitutional provision. In Collector of Customs and others v. Sheikh Spinning Mills (1999 SCMR 1402), this Court struck down the imposition of pre- shipment inspection service charge under the Customs Act, 1969 as unconstitutional, which of course was not based on any fundamental rights. Relevant para reads as under:-- "Considering the case from all angles, although the Federal Legislature is competent to legislate for the imposition of fees within the meaning of Entry 54, in the Federal Legislative List, Fourth Schedule to the Constitution, but again as already discussed hereinbefore, one has to see what is the nature of the legislation and whether the same could have been legislated within the ambit of the powers of the Federal Legislature. No doubt, legislation can be made to impose fee in respect of any of the matters in the Federal Legislative List, but definitely not for pre-inspection, the benefit of which has to go to the companies appointed to carry out the inspection and not to the payees of the fees. The imposition of such fee is not in lieu of services to be rendered for the benefit of its payees -------------------------- For the foregoing reasons, we are of the view that the imposition of service charge as imposed under section 18-B of the Act towards the pre-shipment inspection is ultra vires of the powers of the Federal Legislature." Const.P.76/2007, etc. 249 53. Likewise, in the case of Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others (2002 SCMR 312) this Court observed that "the function of the judiciary is not to question the wisdom of Legislature in making a particular law nor it can refuse to enforce it even if the result of it be to nullify its own decisions provided the law is competently made; its vires can only be challenged being violative of any of the provisions of the Constitution and not on the ground that it nullifies the judgment of the superior Courts." In this judgment the use of expression `any, has widened the jurisdiction of the Court and extended it to the extent of the violation of any of the provisions of the Constitution including fundamental rights. Similarly in Ghulam Mustafa Ansari v. Government of Punjab (2004 SCMR 1903) it was held that "ordinarily it is not for us to question the wisdom of the Legislature merely on the ground that a provision of law may work some inconvenience or hardship in the case of some persons, unless it be violative of a constitutional provision including the fundamental rights".” 171. We have examined the respective contentions of the learned counsel for the parties as well as the vires of the NRO, 2007 on the touchstone of various Articles of the Constitution, and have come to the conclusion that the NRO, 2007 as a whole, particularly its Sections 2, 6 and 7, is declared void ab initio being ultra vires and violative of Articles 4, 8, 12, 13, 25, 62(f), 63(1)(h), 63(1)(p), 89, 175, 227 of Const.P.76/2007, etc. 250 the Constitution, therefore, it shall be deemed non est from the day of its promulgation i.e. 5th October 2007 as a consequence whereof all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the Courts of law including the orders of discharge and acquittals recorded in favour of accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect. 172. Resultantly, all cases in which the accused persons were either discharged or acquitted under Section 2 of the NRO, 2007 or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to this Court and any other such cases/proceedings which may not have been brought to the notice of this Court, shall stand revived and relegated to the status of pre-5th of October, 2007 position. 173. All the concerned Courts including the Trial, the Appellate and the Revisional Courts are ordered to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage Const.P.76/2007, etc. 251 from where such proceedings had been brought to an end in pursuance of the above provisions of the NRO, 2007. 174. The Federal Government, all the Provincial Governments and all relevant and competent authorities including the Prosecutor General of NAB, the Special Prosecutors in various Accountability Courts, the Prosecutors General in the four Provinces and other officers or officials involved in the prosecution of criminal offenders are directed to offer every possible assistance required by the competent Courts in the said connection. 175. Similarly all cases which were under investigation or pending enquiries and which had either been withdrawn or where the investigations or enquiries had been terminated on account of the NRO, 2007 shall also stand revived and the relevant and competent authorities shall proceed in the said matters in accordance with law. 176. It may be clarified that any judgment, conviction or sentence recorded under Section 31-A of the NAO, 1999 shall hold the field subject to law and since the NRO, 2007 stands declared as void ab initio, therefore, any benefit derived by any person in pursuance of Section 6 thereof is Const.P.76/2007, etc. 252 also declared never to have legally accrued to any such person and consequently of no legal effect. 177. Since in view of the provisions of Article 100(3) of the Constitution, the Attorney General for Pakistan could not have suffered any act not assigned to him by the Federal Government or not authorized by the said Government and since no order or authority had been shown to us under which the then learned Attorney General namely Malik Muhammad Qayyum had been authorized to address communications to various authorities/courts in foreign countries including Switzerland, therefore, such communications addressed by him withdrawing the requests for mutual legal assistance or abandoning the status of a civil party in such proceedings abroad or which had culminated in the termination of proceedings before the competent fora in Switzerland or other countries or in abandonment of the claim of the Government of Pakistan to huge amounts of allegedly laundered moneys, are declared to be unauthorized, unconstitutional and illegal acts of the said Malik Muhammad Qayyum. 178. Since the NRO, 2007 stands declared void ab Const.P.76/2007, etc. 253 initio, therefore, any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora/ authorities/courts withdrawing the requests earlier made by the Government of Pakistan for mutual legal assistance; surrendering the status of civil party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by us to be unauthorized and illegal communications and consequently of no legal effect, therefore, it is declared that the initial requests for mutual legal assistance; securing the status of civil party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn. Therefore the Federal Government and other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status. 179. In view of the above noticed conduct of Malik Muhammad Qayyum, the then learned Attorney General for Pakistan in addressing unauthorized communications which had resulted in unlawful abandonment of claims of the Government of Pakistan, inter alia, to huge amounts of the Const.P.76/2007, etc. 254 allegedly laundered moneys lying in foreign countries including Switzerland, the Federal Government and all other competent authorities are directed to proceed against the said Malik Muhammad Qayyum in accordance with law in the said connection. 180. We place on record our displeasure about the conduct and lack of proper and honest assistance and cooperation on the part of the Chairman of the NAB, the Prosecutor General of the NAB and of the Additional Prosecutor General of the NAB, namely, Mr. Abdul Baseer Qureshi in this case. Consequently, it is not possible for us to trust them with proper and diligent pursuit of the cases falling within their respective spheres of operation. It is therefore, suggested that the Federal Government may make fresh appointments against the said posts of persons possessing high degree of competence and impeccable integrity in terms of Section 6 of the NAO, 1999 as also in terms of the observations of this Court made in Khan Asfandyar Wali’s case (PLD 2001 SC 607). However, till such fresh appointments are so made, the present incumbents may continue to discharge their obligations strictly in accordance Const.P.76/2007, etc. 255 with law. They shall, however, transmit periodical reports of the actions taken by them to the Monitoring Cell of this Court which is being established through the succeeding parts of this judgment. 181. A Monitoring Cell shall be established in the Supreme Court of Pakistan comprising of the Chief Justice of Pakistan or a Judge of the Supreme Court to be nominated by him to monitor the progress and the proceedings in respect of Court cases (explanation added in detailed reasons) in the above noticed and other cases under the NAO, 1999. Likewise similar Monitoring Cells shall be set up in the High Courts of all the Provinces comprising the Chief Justice of the respective Province or Judges of the concerned High Courts to be nominated by them to monitor the progress and the proceedings in respect of Court cases (explanation added in detailed reasons) in which the accused persons had been acquitted or discharged under Section 2 of the NRO, 2007. 182. The Secretary of the Law Division, Government of Pakistan, is directed to take immediate steps to increase the number of Accountability Courts to ensure expeditious disposal of cases. Const.P.76/2007, etc. 256 183. Hereinabove are the reasons of our short order dated 16th December 2009. Chief Justice. Judge (1) Judge (2) Judge (3) Judge (4) Judge (5) Judge (6) Judge (7) Judge (8) Judge (10) Judge (11) Judge (12) Judge (13) Judge (14) Judge (15) Judge (16) Judge (17) Islamabad 16.12.2009 Irshad /* APPROVED FOR REPORTING. I agree, by separate note I agree, however I add my own note I agree and have also added my separate note Const.P.76/2007, etc. 257 CH. IJAZ AHMED, J. I have had the benefit and privilege of going through the judgment recorded by Mr. Justice Iftikhar Muhammad Chaudhry, Hon’ble Chief Justice of Pakistan and generally agree therewith. In view of the importance of the matter, I deem it prudent to add few words in support thereto. The facts and contentions have already been narrated in detail by the Hon’ble Chief Justice of Pakistan, therefore, reiteration thereof are not required. 2. Legislative history/past events are relevant for interpreting constitutional provisions on the principle of historical modalities. The Muslims had ruled sub continent for a considerable period. During the period of the Muslim rule, sub continent was rich in all spheres of life. It is interesting to note that rate of literacy was very high above 90 percent as highlighted by Frishta while writing history of the sub continent. Even otherwise sub continent was known as the richest part of the world. The western countries also had belief that sub continent was rich qua all types of resources such as minerals, wheat, rice etc as the land of the sub continent was very fertile as compared to other parts of the world. Sub continent was almost surrounded by mountains and large open area due to which according to the western countries this area is known as “Soonay ke Chiria”. The kingdom of Britain and France had entered in sub continent for the purpose of business. 3. After death of Aurangzeb the system of justice, established by the Muslims, was totally dis-regarded and Muslims were fighting with each other for securing power. This was the time when the East India Company had taken benefit of its experience and ultimately had become rulers of the sub continent. It is pertinent to mention that Lord Const.P.76/2007, etc. 258 Macaulay had made speech at the floor of the British Parliament on 2nd February, 1835 which is to the following effect:- “I have traveled across the length and breadth of India and I have not seen one person who is a beggar, who is a thief. Such wealth I have seen in this country, such high moral values, people of such caliber, that I do not think we would ever conquer this country, unless we break the very backbone of this nation, which is her spiritual and cultural heritage, and, therefore, I propose that we replace her old and ancient education system, her culture, for if the Indians think that all that is foreign and English is good and greater than their own, they will lose their self-esteem, their native self-culture and they will become what we want them, a truly dominated nation”. (a) HISTORY OF CONCEPT OF EQUALITY BEFORE LAW. 4. Holy Quran says; “if Ye Judge between mankind, that Ye Judge justly”. The Holy Prophet (PBUH) proclaimed; “people are all equal as the teeth of a comb”. 5. The concept was introduced by Islam and further highlighted, implemented and explained by the Holy Prophet (PBUH). See Pakistan Petroleum Workers Union’s case (1991 CLC 13). The relevant observations are as follows:- “This Article guarantees to all citizens of Pakistan equality before law and equal protection of law. These rights guaranteed by the Constitution are now universally applied and practised in all the civilized world. It finds recognition in Universal Declaration of Human Rights and the Covenant on Human Rights, 1950. An examination of Constitutions of Const.P.76/2007, etc. 259 various countries will show that the written Constitutions have invariably used the expression “equality before law” but “equal protection of law” has not so commonly been used. According to the jurists term “equal protection of law” finds it origin in the 14th Amendment of the American Constitution. In my humble view the concept of both terms “equality before law” and “equal protection of law” is not of so recent origin in jurisprudence as described by various authors and jurists. From a comparative study of the legal history and jurisprudence we find that the concept of equality before law and principles of “equal protection of the law” were for the first time given and firmly practised by the Holy Prophet (be peace on him). Therefore, it can be traced as far back as 1400 years, i.e. much before the Magna Carta, 14th Amendment of American Constitution, Declaration of Human Rights and the theory of Rule of Law as enunciated by the Western Jurists. The Last Sermon of the Holy Prophet (be peace on him) is a landmark in the history of mankind which recognizes the inalienable Rights of a man conferred by Islam which are now known as Fundamental Rights. The following extracts from the farewell Sermon can be reproduced for reference:- “……..O Ye people, Allah says: O people We created you from one male and one female and made you into tribes and nations, so as to be known to one another. Verily in the sight of Allah, the most honoured amongst you is the one who is most God-fearing. There is no superiority for an Arab over a non-Arab and for a non-Arab over an Arab, nor for the white over the black nor for the black over the while except in God- consciousness.” “All mankind is the progeny of Adam and Adam was fashioned out of clay. Behold! Every claim of privilege whether that of blood or property, is under my heels except that of the custody of the Ka’ba and supplying of water to the pilgrims…………..” “Behold! All practices of the days of ignorance are now under my feet. The blood revenges of the days of ignorance are remitted……..All interest and usurious dues accruing from the times of ignorance stand wiped out…….” “O people, verily your blood, your property and your honour are sacred and inviolable until you appear before your Lord, as the sacred inviolability of this day of yours, this month of yours and this very town (of yours). Verily you will soon Const.P.76/2007, etc. 260 meet your Lord and you will be held answerable for your actions.” 6. The extract from last Sermon of the Holy Prophet (PBUH) is landmark in the history of man kind which is reproduced hereunder:- “12. The concept of equality amongst the mankind was introduced for the first time by Islam. The Holy Prophet (peace be upon him) preached and practised equality throughout the life and sermon delivered on the occasion of last Haj performed by the Holy Prophet (peace be upon him) is the first landmark in the history of mankind. It was clear for all times to come that there is no difference amongst the individuals on the basis of race, colour and territory. The relevant portion reads as under: - - 16. The Holy Prophet (peace be upon him) said in his address at the Hajjat-ul-Wida, the last Haj, performed by him, that ………O! people, hear me, your Lord is one and your father is one. No Arab has any superiority over a non-Arab, nor any non-Arab over an Arab nor any white man over a black man, nor a black man over a white man save in respect of piety and fear of Allah’.” 7. The source of insertion of Article 25 is on the basis of the aforesaid history highlighted hereinabove. Similarly our constitution also ensures dignity of every individual as is evident from atticle 14 of the constitution. See:- i) Francis Corolie Mullin’s case (AIR 1981 SC 746) ii) A.K. Roys’ case (AIR 1982 SC 710) iii) Bandhu Mukti Moracha’s case (1984 SC 802) iv) Bachan Singh’s case (AIR 1982 SC 1235) v) Weereja Chaudhry’s case (AIR 1984 SC 1099) vi) Suo Motu Constitutional Petition: (1994 SCMR 1028) 8. It is a settled maxim that the very concept of fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law. See Jibendra Kshore’s case (PLD 1957 SC 9). Const.P.76/2007, etc. 261 9. It is settled principle of law that where a statute is ex facie discriminatory but is also capable of being administered in a discriminatory manner and it appears that it has actually being administered to the detriments of a particular class in particular, unjust and oppressive manner then it has been void ab initio since its inception. See Waris Mehi’s case (PLD 1957 SC (Pak) 157), Benazir’s case (PLD 1988 SC 416) and I.A. Sherwani’s case (1991 SCMR 1041) and Azizullah Memon’s case (PLD 1993 SC 341 at 358). In Azizullah Memon’s case vires of the criminal law ordinance were attacked on the ground that they were in conflict with fundamental rights guaranteeing equality before law, equal protection of law etc. Saleem Akhtar, J (as then he was) had discussed all previous precedents rendered by superior courts. The relevant observation is as follows:- “(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes; (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) that in order to make a classification reasonable, it should be based ----- Const.P.76/2007, etc. 262 (a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) that the differentia must have rational nexus to the object sought to be achieved by such classification.” (b) CONCEPT OF ISLAM AS UNDERSTOOD BY DEWAN “This judgment cannot be completed without having a glimpse of Islamic Legal System. Mr. Vijay Kumar Dewan in his Book Prosecuting System in India (Practice and Procedure) discussed the legal system of Islam in the following terms:-- “As like the Hindu law the concept of Muslim Law also held that the king derived his authority from Qura’n and the ruler was subordinate to law the main source of Islamic law of Muslim Law i.e. Shar in Qura’n and Sunnah or Hadis. The Prophet was considered to be the best interpreter of Qur’an. On all matters on which Qura’n was silent Sunnah or Hadis was regarded as authority. Because of divergent views taken on various provisions of Qura’n by eminent Muslim Jurists, four well defined braches or schools of Muslim law came to be recognized by different sections of the Muslims. Out of the four the Hanafi School founded by Abu Hanifa (699-767 A.D.) was the most popular in India, few in India however, followed the Shafi School founded by Muhammad Ibn Idris Ash-Shafi (767-820 A.D.). The other two i.e. the Maliki School founded by Malik Ibn Annas (713-797 A.D.) and the Hanbali School based on the teachings of Ahmad Ibn Hanbal (780-855 A.D.) were not popular in India.” The author further classified criminal offences under the Islamic Penal law as follows:- (i) Offences against God. (ii) Offences against the State, and (iii) Crimes against private individuals. 10. The same author discussed the Islamic Justice in the following terms:-- “… The works of judiciary however, worked systematically in view of considerable importance attached by Akbar and his Const.P.76/2007, etc. 263 successors and Akbar had definite zeal to administer justice impartially and he had once remarked. If I were guilty of an unjust act I would rise in judgment against myself. What shall I say then of my sons, my kindred and others. (In this regard reference may be made to the book History and Culture, Vol. 7, pages 547 to 552, Aini Akbari Vol. III p.434; Akbarnama, Vol.III and Storia do mogar, Vol. I, p. 167) Akbar used to devote some time every morning for judicial works at the Jharoka Darshan and Thursday was exclusively kept for judicial work, wherein the top officers such as Chief Qazi, Mufties and other law dignitaries and Kotwal of the town used to participate. He used to decide cases after hearing and ascertaining the law from the jurists. Abdul Fazal the Chronicile Writer of Akbar’s Court has given an account of the Royal Court – ‘He (Akbar) opens the gates of justice and holds an open Court. In the investigation in to the cases of the oppressed, he placed no reliance on testimony or on the oaths, which are resources of the crafty, but draws his conclusions from the contradictions in the narratives, the physiognomy, and sublime resources and noble conjectures. Truth takes her place in this centre. In this work he spends not less than one and half pahars (i.e. about five hours)’. Jahangir followed the ideals of his father. He also in addition to deciding cases every morning had set apart Tuesday exclusively for judicial work. Shahjahan also upheld the maxim of his father that justice must be enforced. Aurangzeb was also very keen in administrating impartial justice except in cases which concerned the interest of prestige of Islam the arrangement of transacting judicial business personally by the sovereign was not disturbed even when the Emperor happened to be on tours on when he was engaged in a military expedition. The Emperor decided both civil and criminal cases and his Court was not only the highest Court of appeal, but also sometimes a Court of first instance. Sometimes the Emperor used to appoint a commission of inquiry and issue instructions to decide cases on the basis of facts revealed in the investigation on the spot. Usually the cases deserving capital punishment were decided by the King himself. Such cases even if tried by Governors or other authorities, were forwarded to the capital for the Kings’ Const.P.76/2007, etc. 264 final order. The standing instructions were that no one was to be executed until the Emperor had given his orders for the third time.” Keeping in view the historical background of the creation of the country beginning with the struggle started by late Sultan Haider Ali of Maysor and his noble, brave and courageous son Tipu Sultan Shaheed who gave his precious life including life of his two beloved sons who fought for freedom, and ultimately achieved the goal of freedom under dynamic leadership of Quaid-e-Azam Muhammad Ali Jinnah, who was motivated by the spirit of great national poet Dr. Allama Muhammad Iqbal; and sacrifices made by millions of Muslims of this sub- continent, we must remember that this freedom was formally recognized by the imperial power by passing the Independence Act, 1947 which gave birth to our esteemed country. Before coming to final conclusion, let me quote that once late Mian Muhammad Mushtaq Gormani met Lord Wavel who during discussion made some remarks about the founder of Pakistan which are very relevant to reproduce here for the purpose of building national character. Lord Wavel said:-- “He(Founder of Pakistan) is not only honest but he is intellectually honest.” 11. Once the rulers of Muslims had deviated from the said principle of providing justice to the people then Great Britain who had entered initially through East India Company for the purpose of commercial business, had got the opportunity to get the benefit of said situation and had been able to take over the power and continued till 1947. Muslims had launched freedom movement in 1857 but could not succeed due to their internal contradictions and on account of non cooperation of the Hindu community with the Muslims. 12. Subsequently, British established its rule in the sub-continent with active support and connivance of Hindus and few Muslim phonies. Bal Gangadhar Tilak, first popular independence fighter after war of Independence of 1857 was convicted and sentenced by the trial Court where Founder of Pakistan appeared as his counsel. Interestingly, Bal Gangadhar Tilak again Const.P.76/2007, etc. 265 engaged Quaid-e-Azam at the appellate stage in the High Court where Quaid- e-Azam for the first time distinguished between the offence against the state and the offence against public functionaries on ground of which appeal was accepted. See Bal Gangadhar Tilak V. Emperor (AIR 1916 Bombay 9). This episode of Muslim counsel of a Hindu convict gave birth to a little lived assumption that both the nation can together toil hard for self rule. The founder of Pakistan did not want division of the sub continent but on account of behaviour of the Hindu community, he had demanded a separate homeland on the basis of two nations theory. See Benazir Bhutto’s case (PLD 1988 SC 416). 13. It is settled maxim that nations can achieve goal under dynamic leadership and the nations who had a vision to see ahead as is evident from the speech of Lord Macaulay on the floor of the house and also from the character of the founder of Pakistan alongwith his vision. 14. The founder of Pakistan was nominated as member of legislative assembly and participated in the proceedings of Legislative Council qua bill relating to Criminal Law (Emergency Powers) Bill on 14th March, 1919 but according to his conscience he did not support government and tendered his resignation from the membership of council as a protest against passing of the Bill and the manner in which it was passed. (c) AFTER CREATION OF COUNTRY. 15. The constituent assembly had promulgated objective resolution in 1949. Ultimately it was incorporated in preamble of the constitution of Islamic Republic of Pakistan and thereafter it was made substantive part of the constitution by adding article 2-A. It is evident from the history of human being that leader/nation would only progress on the basis of its good character. Once an individual leader or nation had deviated from this then destruction is the result. The best example in the recent history of human society is of China when this nation with its birth two years after Pakistan, has attained a position Const.P.76/2007, etc. 266 of super power (an economic joint and a permanent member of the security council). 16. The word “Ameen” difined in the following books which is to the following effect: 1 The Concise Encyclopedia of Islam at page 41: “al-Amin. A name of the Prophet, given to him by the Quraysh before the revelation of Islam, meaning the ‘Trustworthy One’. The word is used as a title for an organization official in a position of trust, such as the treasurer of a charitable organization, a guild, and so forth”. 2. Urdu Daera-e-Maharafil Islamia at page 279-80 Const.P.76/2007, etc. 267 Const.P.76/2007, etc. 268 3. The Encyclopaedia of Islam (New Edition) Vol.1 at 436- 37 “Amin, ‘safe’, ‘secure’; in this and the more frequent from amin (rarely ammin, rejected by grammarians) it is used like amen and (Syriac) amin with Jews and Christians as a confirmation or corroboration of prayers, in the meaning ‘answer Thou’ or ‘so be it’ see examples in al-Mubarrad, al Kamil, 577 note 6; Ibn al-Diazari, al- Nashr, ii, Cairo 1345, 442 f., 447. Its efficacy is enhanced at especially pious prayers, e.g. those said at the Ka’ba or those said for the welfare of other Muslims, when also the angels are said to say amin. Especially it is said after sura i, without being part of the sura. According to a hadith the prophet learned it from Gabriel when he ended that sura, and Bilal asked the prophet not to forestall him with it. At the salat the imam says it loudly or, according to others, faintly after the fatiha, and the congregation repeats it. It is called God’s seal (taba or khatam) on the believers, because it prevents, evil. “Amin” (Ar. Pl. umana), ‘trustworthy, in whom one can place ones’s trust’, whence al-Amin, with the article, as an epithet of Muhammad in his youth. As a noun, it means ‘he to whom something is entrusted, oversear, administrator’: e.g. Amin al Wahy, ‘he who is entrusted with the revelation’, i.e. the angle Gabriel. The word also frequently occurs in titles, e.g. amin al-Dawla (e.g. Ibn al-Tilmidh others), Amin al Din (e.g. Yakut), Amin al-Mulk, Amin al-Saltana”. “MORALITY”. Words and Phrases, Permanent Edition Volume 27A: “Morality” The words “morality” and “character” may have the same meaning when standing alone, but when used together the word “moral” defines the kind of character required by the rule, that attorney must be of good moral character. When so sued, the word “moral” Const.P.76/2007, etc. 269 is in contradistinction, to the word “immoral”. Warkentin v. Klein-watcher, 27 P.2nd 160, 166 Okl. 218.” “Morality” The word “morality” is not used in any narrow sense, but in a general sense, such as the law of conscience, the aggregate of those rules and principles of ethics which relate to upright behavior and right conduct of elected representatives and prescribe the standards to which their action and in particular those who are Muslims, who are guided by the Holy Qur’an and Sunnah should conform, in their dealings with each other or with institutions or the State”. M. Saifullah Khan Vs. M. Afzal. :PLD1982 Lah.77. (d) CONSTITUTION BE READ AS AN ORGANIC WHOLE 17. The body of human being consists of 99 elements with proportionate qua each body of human being. Once the imbalance in the said elements occur then the body as a whole would be disturbed and affected. The body of human being otherwise consists of two parts. Body alongwith the elements and “Rooh- spirit”. All of us have an experience that once the rooh/spirit is missing from the body then body would become dead automatically that is why the body of human being is a compound of aforesaid elements and spirit. The scheme of the Constitution of Pakistan is based on rights and obligations wherein chapter 1 contains fundamental rights and principles of policy in chapter 2. According to my understanding every chapter and every article has its own significance but chapter 1 & 2 had a unique significance. Once these two chapters be held in abeyance as part of the Constitution or to do the things in violation of these two chapters by any organ of the state then according to me constitution would be dead organ that is why Const.P.76/2007, etc. 270 chapter 1 and 2 be called as flowers and beauty of the Constitution. The preamble of the Constitution has its own significance which shows the will of the people to frame the constitution and passed their lives within the four corners and that is why it is settled principle of law that preamble is the key to understand the constitution. This is the first door to open the book which prescribes its values, comments, obligations, rights and commitments. There is no doubt that no provision of the Constitution or law be struck down in case it is framed in violation of preamble of the Constitution but at the same time it is very important that while framing the law or taking the action every organ/authority must keep in its mind the preamble of the constitution which is the command of the forefathers and the nation emerged from the document of Objectives Resolution passed by the Constituent Assembly in 1949. Our Constitution is based on trichotomy consisting of following basic pillars of the State:- a) Legislature to frame laws. b) Executive to implement laws. c) The Judiciary to interpret the laws 18. This is a very beautiful scheme and defined areas of each and every organ to keep the balance. Once this balance is disturbed then the document is dead. Article 7 of the Constitution prescribes all elements and pillars of the State for the purpose of imposing cess and tax, legislature and executive. The legislature had specifically not mentioned the judiciary in article 7 as the judiciary is duty bound to maintain the balance between all the organs, therefore, judiciary is mentioned in part VII under the heading of “Judicature” vide Article 175. It is settled proposition of law that other two organs i.e. legislature Const.P.76/2007, etc. 271 and executive have no authority whatsoever to usurp or to take role of the judiciary as it is in violation of the salient features of the constitution which cannot be changed by any canon of justice as laid down by this Court in various pronouncements. Se Zyed Zafar Ali Shah’s case (PLD 2000 SC 869), Mehmood Khan Achakzai’s case ( PLD 1997 SC 426) and Farooq Ahmed Khan Leghari’s case ( PLD 1999 SC 57 ). It is pertinent to mention here that Supreme Court of India had taken this view which is before us that basic features of the Constitution could not be changed but unfortunately we could not take that stand earlier except the aforesaid judgments that is why the country since creation on 14-8- 1947 till to date most of the time there was no democratic government around for about 37 years. Now it is high time that each and every organ must resolve to save the nation and country to remain within their spheres and discharge their duties in accordance with law. Article 4 of our Constitution compels every body to act in accordance with law whereas article 5 of the Constitution cast duty upon each and every organ/person to obey the command of the Constitution. Similarly Articles 189 and 190 of the constitution has prescribed duty to every organ to implement judgments of the courts. 19. It is pertinent to mention here that 3rd organ is also duty bound to remain within its sphere in terms of article 4 of the Constitution. The provisions of the impugned ordinance are directly in conflict with the aforesaid provisions of the Constitution. In fact through the impugned ordinance, the salient features of the constitution were changed in violation of the aforesaid judgments and command of the various provisions of the Constitution. Const.P.76/2007, etc. 272 (e) POWER OF PRESIDENT TO PROMULGATE ORDINANCE. 20. It is pertinent to mention here that President had power to frame ordinance under Article 89(1) subject to certain conditions which are as follows:- b) National Assembly is not in session. c) President if satisfies that circumstances exist which render it necessary to take immediate action make and promulgate the ordinance as the circumstances may require. 21. The President had the same power as of the National Assembly to frame the laws, that is why principle of check and balance was incorporated in article 89 sub article 2 that life of the ordinance would be four months and the parliament had power even to pass resolution disapproving the said ordinance by the assembly that it would automatically stand repealed after expiry of four months from its promulgation or before the expiration in case of resolution of its dis- approval is passed. The president had also power to withdraw the ordinance at any time. The President had to promulgate the ordinance at the advice of the cabinet. This fact brings the case in the area that it was the satisfaction of the Parliament under Article 89(1) as is evident from the summaries produced before the Court by Acting Attorney General for Pakistan. It was merely mentioned as a ‘draft ordinance’ and nothing else. The preamble of the ordinance also does not reveal that any satisfaction was made before promulgating of the ordinance. It is settled law that when a thing is to be done in a particular manner, it must be done in that manner and not otherwise. The said Ordinance was promulgated even in violation of Article 89. The scheme of the Constitution as mentioned above in our Constitution is based on trichotomy but in case we read the constitution as a whole then it Const.P.76/2007, etc. 273 automatically emerges that there is 4th pillar i.e. people of Pakistan for whose benefit every law be framed who are the real sovereign because the people of Pakistan had chosen the representatives of National Assembly and provincial assemblies and Senate. The Ordinance has not been framed for the welfare of the people of Pakistan. It had been framed by the then President of Pakistan for his benefit and benefit of the other privileged class. It is very difficult for me to imagine that any written or unwritten constitution can allow framing law against the welfare of people of the country. Similarly the President had a power to pardon by virtue of Article 45 of the Constitution but had no right whatsoever to give clean chit or to withdraw the case of the complainant whose near relations were murdered. The whole ordinance and preamble to Section 7 is in violation of various provisions of the constitution mentioned hereinabove. (f) PRINCIPLE OF CHECK & BALANCE. Hazrat Abu Bakr Siddique (RA), First Caliph of Islam in his first address had said that in case he violated any injunction of Islam, then people should guide him to be on right path. And there rose a Bedouin sitting in the audience who remarked that in case he violated the principles of Islam, then they would set him on right path (Nazay ki nook par) The second Caliph Hazrat Umar Farooq (RA) had a shirt (Choga) on his body. He was asked to explain regarding the cloth of that shirt because the cloth of shirt according to his share ~~~ was much less than the body of Caliph. The Caliph replied that he had used the share of his son for Const.P.76/2007, etc. 274 making his own shirt. This is the type of accountability which we have to follow to save the nation to put on a right path. (g) IMPUGNED ORDINANCE VIS-AVIS FUNDAMENTAL RIGHTS. 22. The word corruption has been defined as it has diverse meanings and far reaching effects on society, government and people. In other words it has always been used in a sense which is completely opposite to honesty, orderly and actions performed according to law. A person working corruptly acts inconsistent with the official duty, the rights of others and the law governing it with intention to obtain an improbable advantage for self or some one else. 23. The word corruption is well known to our nation as National Assembly and Provincial Assemblies were dissolved by the President and Governors under Article 58(2)(b) and article 112 of the constitution respectively as these articles were part of the constitution which were introduced through 8th amendment. See:- i) Khalid Malik’s case (PLD 1991 Karachi 1) ii) Khawaja Ahmed Tariq Rahim’ds caxse (PLD 1990 Lah. 505) iii) Khawaja Ahmed Tariq Rahim’s case (PLD 1991 Lah. 78) iv) Khawaja ahmed Tariq Rahim’s case (PLD 1992 SC 646) v) Aftab Ahmed Khan sherpao Case (PLD 1992 SC 723) vi) Mian Muhammad Nawaz Sharif’s case (PLD 1993 SC 473) vii) Benazir Bhutto’s case (PLD 1998 SC 388) 24. Our Constitution clearly envisages that sovereignty over the entire universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan within the limits prescribed by Him as a sacred trust. See Shahid Nabi Malik’s case (PLD 1997 SC 32). Const.P.76/2007, etc. 275 25. The word corruption is also defined by this Court in Mian Muhammad Nawaz Sharif’s case (PLD 1993 SC 473 at 837-838) which is to the following effect:- “The word ‘corruption’ has not been defined by any law, but it has diverse meaning and far-reaching effects on society, Government and the people. It covers a wide field and can apply to any co lour of influence, to any office, any institution, any forum or public. A person working corruptly acts inconsistent with the official duty, the rights of others and the law governing it with intention to obtain an improbable advantage for himself or someone else. Dealing with corruption in Khalid Malik’s case I had observed as follows:- “This bribe culture has plagued the society to this extent that it has become a way of life. In Anatulay VIII (1988) 2 SCC 602 where Abdul Rehman Antulay, Chief Minister of Maharashtra was prosecuted for corruption Sabyasachi Mukharji, J. laments as follows:-- “Values in public life and perspective of values in public live, have undergone serious changes and erosion during the last few decades. What was unheard before is commonplace today. A new value orientation is being undergone in our life and culture. We are at threshold of the cross-roads of values. It is, for the sovereign people of this country to settle these conflicts yet the courts have a vital role to play in these matters. The degeneration in all walks of life emanates, from corruption of power and corruption of liberty. Corruption breeds corruption. ‘Corruption of liberty’ leads to liberty of corruption’.” …………………………………………………………………………… ………………………… Const.P.76/2007, etc. 276 Corruption and bribery adversely affect the social, moral and political life of the nation. In society rampant with corruption peoples lose faith in the integrity of public administration. In India in 1964 Committee on the Prevention of Corruption known as Sanathanam Committee observed as follows:-- “It was represented to us corruption has increased to such an extent that people have started losing faith in the integrity of public administration. We had heard from all sides that corruption, in recent years, spread even to those levels of administration from which it was conspicuously absent in the past. We wish we could confidently and without reservation assert that at the political level Ministers, legislators, party officials were free from the malady. The general impressions are unfair and exaggerated. But they very fact that such impressions are there causes damage to social fabric.’ The Committee also observed that there is a popular belief of corruption among all classes and strata which ‘testifies not merely to the fact of corruption but its spread’. Such belief has a social impact causing’ damage to social fabric.’ The anti-corruption and penal laws have remained ineffective due to their inherent defect in adequately meeting the fast multitudinous growth of corruption and bribery. Corruption in high places has remained unearthed leading to a popular belief that immunity is attached to them. To combat corruption the whole process and procedure will have to be made effective and institutionalized.” 26. In other words written constitution of county is a document which defines the regular form or system of the government, containing the rules that directly or indirectly affect distribution or Const.P.76/2007, etc. 277 exercise of the sovereign power of the state and it is thus mainly concerned with creation of three organs of State and the distribution of authority of the government among them and the definition of their mutual relation. We must remember that a constitution is not just a document but a living frame work for the government of the people and its successful working depends upon the democratic spirit underlying it being respected in letter and spirit. Whenever the spirit of the Constitution was violated, the result was chaos and this fact finds support from following extracts of Shahabnama by Qudrat Ullah Shahab: Const.P.76/2007, etc. 278 Const.P.76/2007, etc. 279 27. The raison d’etre of any constitution is to constitute a country and it is the document which contemplates the grundnorms of State and its laws. Aim of all jurisprudence is “public good” or “Welfare of the people”. No Law can be wholesome and no state can be a welfare State unless the principles of amr bil maruf wan hi anil munkar is strictly adhered to. God Almighty has created mankind and He loves those who love its creation and strives for its welfare. Our forefathers were conscious of this principle and, therefore, the objective resolution was passed. The preamble, containing objective resolution, of the Constitution of Islamic Republic of Pakistan, 1973 cast a sacred duty on the chosen representative of the people and, that is, to exercise powers and authority to run the State in such manner which promotes: (i) principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam; (ii) Muslim to order their lives in the individual and collective spheres in accordance with the teaching and requirements of Islam as set out in the Holy Quran and Sunnah; (iii) protection of minorities and backward and depressed classes; (iv) autonomy of the units of Federation; (v) Fundamental Rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, believe, faith, worship and association, subject to law and public morality; (vi) independence of judiciary; (vii) integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, in fact the above said are the grundnorms and limitations of each organ of the State. 28. Validity of any law can be tested by its result or fruit. If a law evokes healthy feelings/atmosphere, then it is valid otherwise it is void. An illegal morsel gives birth to evils. Similarly any legislation which hurts the Const.P.76/2007, etc. 280 welfare of the people should not be allowed to stand among the people. In this regard, I may quote the following couplet from Molana Roumi’s Masnevy:- 29. From the legal morsel which born knowledge, love and tenderness. If you see that jealousy, deception, ignorance, negligence is born from a morsel, know that it was unlawful. The morsel is a seed and thoughts are its fruit. The morsel is the seed and thoughts are its pearls. 30. In view of above perspective if we allow to hide/swallow corruption and corrupt practices, then obviously it would not be conducive for the people of Pakistan and for the welfare of the State. 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 if grundnorms stated in preamble are strictly followed. In this view of the matter, the national Reconcilliation Ordinance, 2007 being an illegal morsel is declared a legislation viod abi-nitio. 31. However, taking advantage of brevity, I simply hold that the National Reconciliation Ordinance, 2007 is not valid and in this regard, I endorse the view of our celebrated poet Sagar Siddiqui, which he expressed in this following poetic couplet:- Const.P.76/2007, etc. 281 32. For the purpose of maintaining balance between each and every organ of the State, I conclude the note and suggest all organs to obey the command of the Constitution from core of their hearts which is possible on working as per saying of Wasif Ali Wasif (Philosophical Islamic Writer) and Moulana Roomi respectively which are to the following effect: (Justice Ch. Ijaz Ahmed) Const.P.76/2007, etc. 282 JAWWAD S. KHAWAJA, J.- I have gone through the detailed reasons recorded by Hon’ble the Chief Justice, for the short order announced on 16.12.2009. These reasons exhaustively examine the arguments advanced before us by learned counsel for the parties and by the amicii curiae who ably assisted us in these matters. While agreeing with the reasoning of Hon’ble the Chief Justice, I would like to add this note to emphasize aspects of the case which I consider to be of special relevance when examined in the context of the constitutional history of Pakistan. 2. At the very outset it must be said, without sounding extravagant, that the past three years in the history of Pakistan have been momentous, and can be accorded the same historical significance as the events of 1947 when the country was created and those of 1971 when it was dismembered. It is with this sense of the nation’s past that we find ourselves called upon to understand and play the role envisaged for the Supreme Court by the Constitution. The Court has endeavoured to uphold the Constitution and has stood up to unconstitutional forces bent upon undermining it. It is in this backdrop that these petitions have been heard and decided. 3. It is to be noted that though there was no significant opposition to these petitions and even though the Federal Government did not defend the NRO, the important constitutional issues raised through these petitions were thrashed out to ensure that there is adherence to the provisions and norms of the Constitution, not only for the sake of deciding these cases but also to lay down precedent for the institutions of the State and its functionaries in terms of Article 189 of the Constitution. 4. I would also like to add that there can be no possible objection to the avowed objectives of the NRO as set out in its preamble, viz. promotion of national reconciliation and removal of the vestiges of political vendetta and victimization. These objectives, however, must be achieved through means which are permitted by the Constitution. The Court while exercising the judicial function entrusted to it by the Constitution is constrained by the Const.P.76/2007, etc. 283 Constitution and must, therefore, perform its duty of resolving matters coming before it, in accordance with the dictates of the Constitution and the laws made thereunder. If the Court veers from this course charted for it and attempts to become the arbiter of what is good or bad for the people, it will inevitably enter the minefield of doctrines such as the ‘law’ of necessity or salus populi suprema lex, with the same disastrous consequences which are a matter of historical record. This Court has, in its judgment in the case of the Sindh High Court Bar Association Vs. Federation of Pakistan ( PLD 2009 SC 879) emphatically held that it will not deviate from strict adherence to the law and the Constitution. Decisions as to what is good or bad for the people must be left to the elected representatives of the people, subject only to the limits imposed by the Constitution. 5. It has now been firmly and unequivocally settled that the Court cannot and should not base its decisions on expediency or on consideration of the consequences which may follow as a result of enforcing the Constitution. It is for this reason that while deciding the case of Sindh High Court Bar Association Vs. Federation of Pakistan ( PLD 2009 SC 879 ), the Court assiduously avoided validating any of the unconstitutional acts of General Musharraf including his attempt to clothe 37 Ordinances (NRO included) with permanence in violation of the Constitution. It was, in accordance with the scheme of the Constitution and its democratic character that the right of the legislature to enact these Ordinances with retrospective effect was recognized and upheld. It is a matter of record, as noted in the reasons recorded by Hon’ble the Chief Justice, that the elected representatives of the people chose not to resurrect the NRO or to give cover to any acts thereunder through retrospective legislation. 6. In the foregoing context it will be evident that while the Court is obliged to eschew expediency and any other extraneous considerations such as the fall- out and consequences of its judgments, the executive and legislative limbs of the State do not suffer from similar constraints. As such the Const.P.76/2007, etc. 284 consequences of executive and legislative decisions are a legitimate concern of these organs of the State. Legislators and functionaries performing executive functions may resort to expediency, compromise and accommodation in achieving political and policy objectives considered appropriate in their judgment. As long as such decisions conform to and are not violative of the Constitution, the executive and the legislature are only accountable to the electorate and not to Courts. This is the democratic principle enshrined in the Constitution. 7. One reason for giving the above background is to examine and comment on the applications (CMA Nos. 4875 and 4898 of 2009) submitted by Mr. Kamal Azfar, Sr. ASC on behalf of the Federal Government. The relevant contents of these applications have been duly noted in the main judgment. Of particular concern to me are the following excerpts from these applications:- “Pak today is poised at the cross roads. One road leads to a truly federal democratic welfare state with the balance of power between an independent judiciary, a duly elected Govt. representing the will of the people and a determined executive which is fighting the war against terrorism and poverty. The second road leads to destabilization of the rule of law. The people of Pakistan await your verdict.” 8. There is, implicit in the above words, a plea to the Court to once again revert to the disastrous and rejected route of expediency and to tailor the outcome of these petitions by looking at the consequences which will follow, rather than the requirements of the Constitution. I would like to state most emphatically that the path of expediency and subjective notions of ‘State necessity’ are dead and buried. I find it quite extraordinary that a democratically elected Federal Government should be imploring the Court to act in a manner otherwise than in accordance with law. It was emphasized to Mr. Kamal Azfar while considering the aforesaid applications in Court, and it now needs to be reiterated in the strongest terms that this Court will not take into account extraneous considerations while exercising its judicial powers and Const.P.76/2007, etc. 285 also that adherence to the Constitution can never lead to “destabilization of the rule of law.” On the contrary, any breach of Constitutional norms is likely to destabilize the rule of law. 9. The onus, therefore, of stabilizing the rule of law falls on and must be assumed by the executive organ of the State which also commands a majority in the legislature. This is the requirement of the Parliamentary democratic dispensation ordained by our Constitution. Political stability and the rule of law will flow as a natural consequence of giving sanctity and respect to the Constitution, both in letter and in spirit. The Court can only strengthen the rule of law by upholding the Constitution, which is, in fact, the supreme law. The executive and legislative limbs of the State are also constitutionally obliged to apply the powers and resources at their command, in enforcing the Constitution and the rule of law without discrimination or undue favour to any person or class. 10. Almost a millennium before ‘good governance’ and ‘rule of law’ became fashionable buzz-words in political discourse, the importance of good governance and the rule of law and their direct co-relation with political stability was recognized by enlightened rulers. In the Siyasatnama written by Nizam-ul-Mulk Toosi the incident is narrated where the Governor of Hamas (in present day Syria) wrote to the Caliph seeking funds to rebuild the protective wall to defend the State against its enemies, that is, to ensure the stability of the government. The reply he received is instructive. He was told to build the walls of justice i.e. the rule of law and this would ensure peace, stability and freedom from the fear of enemies. 11. This brings me to the decisions recorded in the short order of 16.12.2009 and the detailed reasons for the same. The NRO has been declared unconstitutional and void ab initio. It has thus met the fate it richly deserved as a black law created and prolonged by the corrupt and malevolent hands of a military dictator. The fact that the incumbent democratic government chose not to defend such a vile law bodes well for constitutionalism and the rule of law. Const.P.76/2007, etc. 286 There is, of course, the matter of persons who may be innocent of any wrong- doing but were victimized due to political vendetta. For such persons this judgment ought to be seen as a boon. Instead of living in the shadow of a malignant cloud for the rest of their lives, their reputations sullied by the foul intervention of a scheming mind, these persons are enabled through this judgment to clear their good name of any taint with which they of necessity, stood branded on account of the NRO. This indeed would be the most potent rejoinder to those who maliciously may have initiated false cases to harm their reputations for ulterior political considerations. As the sage Sheikh Saadi said centuries ago, in these ageless words:- 12. It should also be mentioned that by striking down the NRO the Court does not foreclose the possibility or impinge on the prerogative of the legislature to enact a non-discriminatory law which can pass constitutional muster and is motivated by a desire to bring about a true and inclusive reconciliation which is genuinely national in its outreach and attempts to bring within its fold disparate groups harbouring valid grievances against oppressive and vindictive use of State machinery in the past. Even those who may have committed wrongs in the past and were not wronged against, are not beyond being redeemed through a compassionate law which heals the fissures in the nation’s divided polity. These are, however, matters which fall squarely within the legislative and executive domains, should these organs of the State wish to act. 13. The concept of tauba and sincere repentance coupled with restitution of any ill-gotten gains and the expression of genuine remorse Const.P.76/2007, etc. 287 for past excesses provide an age-old matrix for fostering reconciliation. It has been applied successfully in ancient as well as modern societies, the most recent example being that of South Africa where a Truth and Reconciliation Commission has been able to bring about a genuine national reconciliation between staunch opponents divided among other things, by race and embittered by decades of apartheid. An example of national reconciliation also appears in our own nation’s history. This has been commented upon in the main judgment. It would, as noted above, be for the executive and the legislature to consider the potential and the possibilities of what can be achieved by way of reconciliation, as opposed to perpetuation of the venom and mutual recriminations which continuously divide the nation at the cost of its well-being. This Court, however, can only abide by the rule of law and in order to do so it must limit itself to the adjudication of controversies in accordance with the Constitution and with laws made consistently therewith. Judge Const.Ps.76 to 80/2007 etc. 288 SARDAR MUHAMMAD RAZA, J.- I had the privilege of going through the detailed judgment rendered by Hon’ble the Chief Justice. I have no doubt about the conclusion that National Reconciliation Ordinance 2007 is violative of all those articles of the Constitution referred to in the judgment and is void ab initio. 2. Once the NRO 2007 is non est, the obvious legal consequence thereof would be that all cases affected thereby shall revive from the stage where each was interrupted at. As it is a matter of National importance, it has to be taken care of. For this purpose this Court has devised a mode of monitoring and also the creation of a monitoring cell. This, but for the terminology used, is not unusual. I would prefer the mode adopted by the Court in normal course of action. 3. Many a time, in the given circumstances of a particular hearing before this Court, various instructions are issued to the executive authorities as well as judicial fora to act in a particular manner for just and expeditious disposal of matters pending before them. Such orders are issued only during hearing of a cause arising out of a matter already pending before lower fora at the stage of trial, revision or appeal etcetera. 4. Suo Moto or direct action is not taken by the Supreme Court about matters at trial stage because most of such Courts are under the direct supervisory and administrative control of the High Courts. Unless a matter is challenged before it in its Revisional, Appellate or Constitutional jurisdiction, even the High Court does not interfere with the matters pending at investigation or trial stage. The reason is quite obvious and logical that by so doing the lower forums are most likely to be influenced thereby, one way or the other. This effect is likely to enhance when originating from the apex Court. Const.Ps.76 to 80/2007 etc. 289 5. I am, therefore, of the view that this Court should monitor the cases related to the non est NRO 2007 in usual manner that it normally adheres to. The normal course is that orders are passed and directions issued to the lower forum in a matter pending before such forum, during hearing under appellate, review or constitutional jurisdiction of this Court. After having passed such orders or directions for proper, just and smooth disposal of cases, this Court retreats into an aura of judicial unconcern, without being over indulgent. 6. Whenever any such order passed by this Court is violated, the party aggrieved resorts to the Court for redressal of its grievances or for rectification of the violation done. The Court takes, rather, serious notice of it and comes to the rescue of the party, aggrieved through such non compliance. 7. Similar should be the normal course about pending cases under National Accountability Ordinance. This Court is to monitor such cases and pass appropriate orders only when, in each particular case, the violation of this judgment, is brought to the notice of this Court by any aggrieved party; be the prosecution or the defence. It is only after such violation being brought to the notice of this Court, that the Honourable Chief Justice may mark the same to any bench of this Court, including the Bench consisting of the monitoring Judge. 8. So far as the idea of suo moto monitoring during the stage of investigation or trial is concerned, it has never been adhered to by this Court, in its dignity, grace and judicial unconcern. We, therefore, should monitor every wrong but on the application of the aggrieved party. There are millions of cases pending in the trial Courts of the Country but the High Courts or Supreme Court do not monitor those cases through a particular Const.Ps.76 to 80/2007 etc. 290 cell unless the wrong done is brought to the notice of the Court. NAB cases should not be made an exception. 9. I really appreciate, rather envy the apt choice of verse- selection by my Honourable brother Mr. Justice Ch. Ijaz Ahmed. It depicts a phenomenon of universal wisdom; that, in a country where the wealth of a poor man is looted, its Ruler has verily gone astray and has faltered. The literary or poetic expression of the verse is marvelous. Its philosophical aspect is superb. But, at the same time, I remained at loss to comprehend as to which “Sultan” he really referred to. 10. Does he refer to the Sultan during whose regime, the loot and plunder had occurred with reference to the dates specified in the National Accountability Ordinance? Does he refer to the “Sultan” during whose regime not only the loot and plunder occurred but the earlier plunders got exonerated through National Reconciliation Ordinance 2007? Does he refer to the “Sultan”, who according to our own verdict, was also the beneficiary of such void law? 11. All these queries make me skeptical about many rulers but prima dona thereof, according to our judgment, is the maker of the National Reconciliation Ordinance, 2007. He was the equal beneficiary of the Ordinance as observed by us that, it was a deal between two individuals and not a reconciliation at the National level. Such deal, in other words, is tantamount to grave violation of the Constitution. 12. We have much dilated upon but the adventures of one set of beneficiaries whose cases, after revival, are supposed to be pending before the relevant forums. Any observation by this Court about such pending cases shall not affect or influence the trial Courts; but what about the beneficiary about whose action, we Const.Ps.76 to 80/2007 etc. 291 have given absolute and conclusive decision, that it was void ab initio. 13. What about the beneficiary who clearly confessed through the Ordinance that many Accountability cases were politically motivated, politically indicted, and politically prolonged, obviously as a sword of Damocles. If politically motivated, why were those indicted. If genuine, why were those dishonestly prolonged and no verdict was obtained against the accused involved. 14. All this, is aimed at bringing home that all beneficiaries are to be dealt with accordingly, equally and without discrimination. The maker of the Ordinance should also be brought to accountability for perpetuating corruption and for violating the Constitution. No doubt, such beneficiary is not a party to the present petitions but so are the other beneficiaries, taken care of in our judgment. Moreover, this Court has, on many occasions, given verdict against persons not party to the proceedings. All beneficiaries of National Reconciliation Ordinance, of the first or the second part, are to be dealt with equally, equitably and without discrimination. If one is proceeded against, the other must also be. 15. At the end, I must appreciate the legal assistance rendered by all the learned counsel that appeared to assist this Court, especially, the expressively eloquent and materially potent discourse of Mr. Salman Akram Raja, the budding Advocate of the Supreme Court. (Sardar Muhammad Raza) Judge

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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Gulzar Ahmed Mr. Justice Qazi Faez Isa Mr. Justice Sardar Tariq Masood C.P.No.78-K of 2015 [On appeal against order dated 21.11.2014 passed by the Sindh Service Tribunal, Karachi, in Appeal No.195 of 2014] Maula Bux Shaikh & others Petitioner(s) VERSUS Chief Minister Sindh & others Respondent(s) ******** For Petitioner No.1 : Mr. Salah-ud-Din Ahmed, ASC For Petitioner Nos.2-3 : Mr. Rasheed A Rizvi, Sr. ASC For Respondent Nos.1-4 : Mr. Sabtain Mehmood, Asstt:A.G. Sindh For Respondent No.5 : Mr. Ghulam Haider Shaikh, ASC For Respondent Nos.6-7 & 9 : Nemo For Respondent Nos.8 & 12 : Dr. Muhammad Farough Naseem, ASC For Rspdnt Nos.10-11, 13-17 : Mr. M. Aqil Awan, Sr. ASC Date of Hearing : 24.04.2018 JUDGMENT GULZAR AHMED, J.— Maula Bux Shaikh, Petitioner No.1, (the Petitioner) had filed a Service Appeal before the Sindh Service Tribunal, Karachi, (the Tribunal) challenging Notification No.SOI(W&S)E/12-1/2005 dated 19.03.2014 to be ultra vires the Pakistan Engineering Council Act, 1976 (PEC Act). The circumstances under which the Service Appeal was filed by the Petitioner are that he was employed as Sub Engineer BS-11 in the year 1985 in the Works and Services Department, Government of Sindh, Karachi. He was 5-C.P.No.78-K of 2015.doc - 2 - promoted as Assistant Engineer BS-17 in the year 1997 and since then has been serving in such post in his said department. The case of the Petitioner is that he is a qualified engineer holding degree of Bachelor of Engineering. He has unblemished service record and is eligible for promotion to the post of Executive Engineer BS-18 but on account of the notification, referred to above, his chance for promotion as Executive Engineer BS-18 has been gravely diminished for the reason that said notification has provided 13% promotion quota to Diploma holders and 7% promotion quota to B.Tech (Hons) Degree holders for the post of Executive Engineer BS-18. The grievance of the Petitioner is that the post of Executive Engineer BS-18 being that of a purely professional engineering work could only be performed by a professional engineer holding accredited engineering qualification, as provided in the PEC Act. 2. We have heard learned ASCs for the parties at length and have gone through the record of the case. The learned ASCs for the parties have also filed their written note of arguments, which too have been perused by us. 3. The notification dated 19.03.2014 is as follows: “NOTIFICATION No.SOI(W&S)E.W/12-1/2005: In pursuance of Sub- Rule (2) of Rule-3 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974 and in consultation with the Services, General Administration & Coordination Department, Government of Sindh, and in partial modification of this Department’s Notification No. EI(C&W)1-34/81-84(86) dated 14.01.1987, the method, qualification and other conditions for appointment in respect of the post of Executive Engineer (BPS-18) (Civil/Mechanical/Electrical) in Works & Services Department, Government of Sindh mentioned in column- 2 of the table below:- 5-C.P.No.78-K of 2015.doc - 3 - TABLE Name of the post with BS METHOD OF APPOINTMENT 1 2 Executive Engineer (Civil/Mechanical & Electrical) (BPS- 18) i) Eighty percent by promotion from amongst the Assistant Engineers B.E. in Civil, Electrical or Mechanical Engineering with atleast five years service in BPS-17 on seniority-cum- fitness basis with their respective technology. ii) Thirteen percent by promotion from amongst the Diploma holder Assistant Engineers having Diploma in Civil, Electrical or Mechanical Engineering with atleast five years service in BPS-17 on seniority-cum-fitness basis with their respective technology and iii) Seven percent by promotion from amongst the Assistant Engineers having B.Tech (Hons) degree in Civil, Electrical or Mechanical Engineering with atleast five years service in BPS-17 on seniority-cum-fitness basis with their respective technology. QAZI SHAHID PERVEZ SECRETARY TO GOVT. OF SINDH” 4. In order to regulate the engineering profession, the Parliament has passed PEC Act on 10.01.1976. Section 2(ii) of the PEC Act defines accredited engineering qualification, which is as follows: “accredited engineering qualification” means any of the qualification included in the First Schedule or the Second Schedule” 5. It is common ground that neither Diploma nor B.Tech (Hons) Degree are accredited engineering qualification for the reason that there is no reference to the Diploma and B.Tech (Hons) Degree in the accredited engineering qualification provided in the first and second schedule of the PEC Act. Thus, accredited engineering qualification is ascribed to those who hold Bachelor Degree in Engineering from 5-C.P.No.78-K of 2015.doc - 4 - accredited Engineering Universities/Institutions in Pakistan and abroad. 6. Professional Engineer is defined in Section 2(xxiii), which is as follows: “professional engineer” means a person who holds an accredited engineering qualification and after obtaining a professional experience of five years, whether working privately or in the employment of an engineering public organization, has passed the prescribed engineering practice examination and is registered as such by the Council. 7. Professional Engineering Work is defined in Section 2(xxv) as follows: “professional engineering work” means the giving of professional advice and opinions, the making of measurements and layouts, the preparation of reports, computations, designs, drawings, plans and specifications and the construction, inspection and supervision of engineering works, in respect of— (a) railways, aerodromes, bridges, tunnels and metalled roads; (b) dams, canals, harbours, light houses; (c) works of an electrical, mechanical, hydraulic, communication, aeronautical power engineering, geological or mining character; (d) waterworks, sewers, filtration, purification and incinerator works; (e) residential and non-residential buildings, including foundations framework and electrical and mechanical systems thereof; (f) structures accessory to engineering works and intended to house them; (g) imparting or promotion of engineering education, training and planning, designing, development construction, commissioning, operation, maintenance and management of engineering works in respect of computer engineering, environmental engineering, chemical engineering, structural engineering, industrial engineering, production engineering, marine engineering and naval architecture, petroleum and gas engineering, metallurgical engineering, agricultural engineering, telecommunication engineering, avionics and space engineering, transportation engineering, air-conditioning ventilation, cold storage works, system engineering, electronics, radio and television engineering, civil 5-C.P.No.78-K of 2015.doc - 5 - engineering, electrical engineering, mechanical engineering and biomedical engineering etc; (h) organizing, managing and conducting the teaching and training in engineering universities, colleges, institutions, Government colleges of technology, polytechnic institutions and technical training institutions; (i) preparing standard bidding or contract documents, construction cost data, conciliation and arbitration procedures; guidelines for bid evaluation, prequalification and price adjustments for construction and consultancy contracts; and (j) any other work which the Council may, by notification in the official Gazette, declare to be an engineering work for the purposes of this Act;” 8. Registered Engineer is defined in Section 2(xxvii) as follows: “registered engineer” means a person who holds an accredited engineering qualification, whether working privately or in the employment of an engineering public organization and is registered as such by the Council. Registered Engineer shall perform all professional engineering works except independently signing design. 9. Section 10(1) of the PEC Act provides: “ The engineering qualifications granted by engineering institutions in Pakistan which are included in the First Schedule shall be the accredited engineering qualifications for the purposes of this Act.” 10. While section 11(1) provides: “The engineering qualifications granted by engineering institutions outside Pakistan which are included in the Second Schedule shall be accredited engineering qualifications for the purposes of this Act.” 11. Section 27 of the PEC Act provides for penalties and procedure, which is as follows: “27. Penalties and procedure.— (1) After such date as the Federal Government may, after consultation with the Council, by notification in the official Gazette, appoint in this behalf, whoever undertakes any professional engineering work shall, if his name is not for the time being borne on the Register, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a continuing offence, with a further fine which may extend to two hundred rupees for every day after the first during which the offence continues. 5-C.P.No.78-K of 2015.doc - 6 - (2) After the date appointed as aforesaid, whoever employs for any professional engineering work any person whose name is not for the time being borne on the Register shall be punishable, on first conviction, with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both, and on a second or subsequent conviction, with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both. (3) Whoever willfully procures or attempts to procure himself or itself to be registered under this Act as a registered engineer, professional engineer, consulting engineer, constructor or operator by making or producing or causing to be made or produced any false or fraudulent representation or declaration, either orally or in writing, and any person who assists him therein shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. (4) Whoever falsely pretends to be registered under this Act, or not being registered under this Act, uses with his name of title any words or letters representing that he is so registered, irrespective of whether any person is actually deceived by such pretence or representation or not, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. (5) No person undertaking any professional engineering work shall, unless he is registered under this Act, be entitled to recover before any court or other authority any sum of money for services rendered in such work. (5A) No person shall, unless registered as a registered engineer or professional engineer, hold any post in an engineering organization where he has to perform professional engineering work. (6) No court shall take cognizance of any offence punishable under this Act save on complaint made by, or under the authority of, the Council. (7) No court inferior to that of a Magistrate of the first class shall try any offence punishable under this Act.” 12. The main gist of the arguments of the learned ASC appearing for the petitioners is that the work of Executive Engineer BS-18 is strictly that of a Professional Engineer and it can only be performed by a Professional Engineer, who has engineering degree from an Accredited Engineering Institution of Pakistan or abroad as included in the first and second schedule of the PEC Act, Diploma holders and B.Tech 5-C.P.No.78-K of 2015.doc - 7 - (Hons) Degree holders are not professional engineers and cannot perform work of a Professional Engineer and that law specifically provides penalties to those who perform professional engineering work without possessing accredited engineering qualification and registered as Professional Engineer by the Pakistan Engineering Council (the Council). 13. On the other hand, learned ASC appearing for the respondents have contended that this very issue has come up before this Court number of times and this Court has dealt with it time and again and held that in the matter of employment and promotion etc, the Government Institutions are legally entitled to take decisions as a matter of policy to grant promotion to employees in Engineering Public Organization who are Diploma holders in engineering and B.Tech (Hons) Degree holders. 14. We have noted that the Tribunal in the impugned judgment has referred to number of judgments of this Court and the point in issue in those judgments substantially also deals with the present controversy before us. Thus before dilating upon the matter, it is essential that we examine the judgments, which this Court has already delivered and are also referred in the impugned judgment of the Tribunal. The first case in line is a judgment of three members bench of this Court in the cases of PAKISTAN DIPLOMA ENGINEERS FEDERATION (REGISTERED) THROUGH ITS CHAIRMAN V/s FEDERATION OF PAKISTAN THROUGH SECRETARY MINISTRY OF WATER & POWER, GOVERNMENT OF PAKISTAN, ISLAMABAD & 9 OTHERS (1994 SCMR 1807). In this case the question involved was whether the Diploma Engineers employed in Pakistan Railways can be debarred from promotion to Grade-18 on the 5-C.P.No.78-K of 2015.doc - 8 - ground that they are not registered as “professional engineers and consulting engineers” with Pakistan Engineering Council even though they were otherwise by reasons of their seniority etc eligible for promotion to Grade-18. While referring to the case of MUHAMMAD AZIM JAMALI AND 11 OTHERS V/S GOVERNMENT OF PAKISTAN, THROUGH SECRETARY/ CHAIRMAN, MINISTRY OF RAILWAYS, AND 33 OTHERS (PLJ 1992 Karachi 1) = (1992 PLC(CS) 637), where split decision was given by two Hon’ble Judges of Sindh High Court and ultimately it was referred to a Referee Judge for his opinion. This Court in dealing with the case before it relied upon the conclusion reached by the Referee Judge and quoted the same in the judgment as follows : “16. The conclusion of the learned Chief Justice was expressed as follows: “A careful reading of subsections (1) and (2) of section 27 of the Act will show that the penalties prescribed in the section are attracted only against those persons who are not registered under the Act but undertake any professional engineering work as defined in the Act. Similarly, the person who employs a person who is not registered under the Act, on a professional engineering work, is equally liable for punishment under the Act. The above provisions are wide enough to include the cases of those persons who may be employed in any private or Governmental organization and are called upon to undertake any professional engineering work. The provisions of the Act, regarding registration of professional engineer and consulting engineer, therefore, in my view, would not be applicable to the persons serving as engineer with the Railways, as in course, of their such employment they neither act as ‘professional engineer’ nor as ‘consulting engineer’. However, if such persons undertake any professional engineering work as defined under the Act, then the provisions regarding registration under the Act will be attracted and they could also be punished in accordance with the provision of section 27 of the Act for violating the provision of the Act.” 5-C.P.No.78-K of 2015.doc - 9 - 15. On the basis of such conclusion of the Referee Judge, this Court proceeded to make its own observation, which is as follows: 17. The above judgment of the High Court was not challenged either by the qualified engineers who held degrees from recognized Institutions of Pakistan nor by the diploma-holders but only by the Pakistan Engineering Council (which was one of the respondents in the Constitution Petition filed in the High Court). According to the Pakistan Engineering Council, the provisions of the Pakistan Engineering Council Act had not been correctly interpreted because the judgment of the majority in the High Court, it appeared to the Council had laid down that the Act applied to engineers engaged in professional engineering works in the private sector whereas the application of provisions of the Act according to them, could not be restricted only to the private practitioners alone. 18. We on the other hand after hearing Mr. Abid Hassan Minto learned Advocate for the appellant at considerable length consider that this is not a correct interpretation of the judgment of the High Court. The High Court has clearly stated that the provisions of the Act were wide enough to include cases of those persons engaged in professional engineering works whether employed in any private or Governmental organization, if they are called upon to undertake any professional engineering work, as defined under the Act. In fact in the connected case C.A.No.31 of 1992 a Committee of Secretaries constituted by the Punjab Government correctly summed up the true position obtaining in the Act as follows:-- “The Committee was of the view that the Government could appoint a non-graduate engineer to a post in any grade but if the post involved performance of professional engineering work such appointment would attract penalties prescribed in the Act. The finding of the Referee Judge in this case is to the same effect and in our opinion this finding is quite correct.” 16. The next case in line is a judgment of five member bench of this Court in the case of FIDA HUSSAIN V/S THE SECRETARY, KASHMIR AFFAIRS AND NORTHERN AFFAIRS DIVISION, ISLAMABAD & ANOTHER (PLD 1995 Supreme Court 701). In this case facts were that petitioner was appointed as Overseer/Sub-Engineer in northern area PWD in 5-C.P.No.78-K of 2015.doc - 10 - 1971. The Federal Government, in order to encourage the diploma holders to improve their academic qualification resolved to prescribe courses namely B.Tech (Pass) and B.Tech (Hons). The later was treated as equivalent to B.Sc. (Engineering) and Bachelor of Engineering for the purpose of promotion. Petitioner having passed B.Tech (Pass) and B Tech (Hons) was denied promotion in BPS-17 for the reasons that B.Tech (Hons) was not recognized by Pakistan Engineering Council as equivalent to B.Sc. (Engineering) Degree. Petitioner filed Service Appeal, which was dismissed. The Appeal filed by the petitioner before this Court was also dismissed. The petitioner then applied for review, which was allowed and the judgment dismissing the Civil Appeal was recalled and his appeal was allowed with directions to consider the petitioner’s case of promotion to BS-17. The Court while allowing relief to the petitioner observed as follows: “9. In this regard, we may point out that it is the domain of the Government concerned to decide whether a particular academic qualification of a civil servant/ employee is sufficient for promotion from one Grade to another higher Grade and whereas it is in the domain of the Pakistan Engineering Council to decide, as to whether a particular academic qualification can be equated with another academic qualification, but it has no power to say that the civil servants/employees holding particular academic qualification cannot be promoted from a particular Grade to a higher Grade. The main object of the Act as pointed out by one of us (Ajmal Mian, J.) and Saiduzzaman Siddiqui, C.J. (as he then was) in the above High Court judgment is to regulate the working of professional engineers and consulting engineers and not to regulate the qualification or the working of the engineers in the Government or semi-Government departments. The definitions of the terms “professional engineer” and “professional engineering work” given in clauses (j) and (k) of section 2 o the Act are to be read together and, therefore, as a corollary to the same, it must follow that the term “professional engineering work” as defined in clause (k) of section 2 of the Act is to be performed by a professional engineer as defined in clause (j) thereof, which is evident from section 8 of the Act, which defines the functions of the Pakistan Engineering Council as under:- 8. Functions of the Council.--- The following shall be the functions of the Council, namely:-- 5-C.P.No.78-K of 2015.doc - 11 - (a) maintenance of a Register of person qualified to practice as professional engineers and consulting engineers; (b) recognition of engineering qualifications for the purpose of registration of professional engineers and consulting engineers; (c) removal of names from the Register and restoration to the Register of names which have been removed; (d) laying down of standards of conduct for the members; (e) safeguarding the interest of the members; (f) promotion of reforms in the engineering profession; (g) management of the funds and properties of the Council; (h) Promotion of engineering education and review of courses of studies in consultation with the Universities; (i) levy and collection of fees from applicants for registration or temporary licences and members; (j) exercise of such disciplinary powers over the members and servants of the Council as may be prescribed; (k) formation of such committees s may be prescribed; and (l) performance of all other functions connected with, or ancillary or incidental to, the aforesaid functions.” A perusal of the above quoted section shows that the Pakistan Engineering Council is vested with the functions to regulate the persons qualified to practice as professional engineers and consulting engineers and not persons who are employed in the Government or semi- Government organisations. If the Government employs a professional engineer as defined in the Act for performing professional engineering work as envisaged by the Act in above clause (k) of section 2, the provisions of the Act would be attracted and not otherwise. 10. Reverting to the merits of the present case, as pointed out hereinabove, that the petitioner pursuant to the above decision of the Government of Pakistan dated 26.10.1973 passed his B.Tech (Pass) in 1977 and B.Tech (Honours) in March, 1981, from the NED University Karachi, and, therefore, acted upon the above representation of the Government. In this view of the matter, it is not just and fair not to consider the petitioner 5-C.P.No.78-K of 2015.doc - 12 - for promotion to BPS-17 keeping in view the admitted fact that a number of other civil servants/employees in the same department in the same position have been promoted by the departments/organisations concerned. In this behalf, it may be pertinent to refer to the case of Mukhtar Ahmad and 37 others v. Government of West Pakistan through the Secretary, Food and Agriculture, Civil Secretariat, Lahore and another (PLD 1971 SC 846). The fact of the above case were that the persons possessing the qualifications mentioned in Rule 7 of the West Pakistan Agricultural Engineering Service (Class II) Rules, 1963 were not available. The Government launched a scheme for training of Assistant Agricultural Engineers, whereunder 46 Graduates in B.Sc. Agriculture were to be selected for appointment as Assistant Agricultural Engineers after their successful completion of two years’ diploma course at an Agricultural University. The above scheme was discussed by the government with the Public Service Commission. The candidates selected by the Public Service Commission, who were about to complete their training of two years, were informed by the government that they would have to appear again before the Public Service Commission to be selected for appointment to the posts of Assistant Agricultural Engineers (Class-II). The candidates asserted that after the completion of their training they were entitled to be appointed as Assistant Agricultural Engineers (Class-II) in terms of the offer made to them and they could not be required to appear again before the Public Service Commission for such appointment. On the other hand, the Government contended that the candidates did not possess the qualification prescribed by Rule 7 of the West Pakistan Agricultural Engineering Service (Class II) Rules, 1963, for appointment to such posts. The matter came up for hearing before this Court in the form of an appeal with the leave of this Court filed by the candidates against the judgment of a Division Bench of the erstwhile High Court of West Pakistan. The same was allowed and inter alia the following was concluded:-- “The offer of the Government and its acceptance by the appellants constituted a valid agreement and they Governor’s order dated the 1st July, 1965 provided the authority for such an agreement. This agreement is capable of being enforced in law. The Government was both competent and obliged to implement that agreement. When the Governor’s order, dated the 1st July, 1965, provided a special authority for recruitment to the 46 posts of Assistant Agricultural Engineers, rule 7 of the Recruitment Rules was not applicable in this case.” 11. The above case supports the petitioner’s stand. Another aspect which escaped notice of this Court in the judgment under review is that some of the other civil servants/employees placed in the same position as the petitioner was had been considered for promotion to BPS- 17 and in fact were promoted, whereas the petitioner was 5-C.P.No.78-K of 2015.doc - 13 - denied the above benefit which amounted to violation of inter alia Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. In this regard, reference may be made to the case of I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041). 12. The judgment of this Court in the case of Muhammad Siddique Nasim (supra) relied upon by the Tribunal is distinguishable for more than one reason, firstly, in the above case the notification of the Government of Punjab dated 8.2.1961 equivalising B.Tech (Honours) with B.Sc Engineering degree was withdrawn on 15.03.1985, whereas the petitioner received degree of B.Tech (Honours) in June, 1985, i.e. after the withdrawn of the notification whereas in the present case, admittedly the petitioner passed his B.Tech (Honours) in March, 1981, before the Pakistan Engineering Council through its Registrar’s above letter dated 24.4.1984 stated that there was typographical error in the above-quoted portion of its Registrar’s letter dated 30.04.1981. Secondly, in the judgment in the case of Pakistan Diploma Engineers Federation (Registered) through its Chairman (supra), this Court affirmed the majority view of the High Court of Sindh in the case of Muhammad Azim Jamali (supra), in which it has been held that the provisions of the Act are applicable only to professional engineers and consulting engineers who are in practice and not to the persons working in the Government departments, autonomous bodies, local authorities and private firms or companies. 13. We may again observe that it is exclusively within the domain of the Government to decide whether a particular qualification will be considered sufficient for promotion from a particular Grade to a higher Grade and it is also within the domain of the Government to change the above policy from time to time as nobody can claim any vested right in the policy. However, it cannot abdicate its power to decide the above question in favour of a corporate body which is not in its control nor it can act in a manner which may be violative of Article 25 of the Constitution on account of being discriminatory. It is still open to the Government for future to provide that academic qualification of B.Tech (Honours) will not be considered sufficient for promotion from BPS-16 to BPS- 17 if the same does not violate the above principle.” 17. Next case is a judgment of two members bench of this Court in the case of MUHAMMAD YOUNUS AARAIN V/S PROVINCE OF SINDH THROUGH CHIEF SECRETARY, SINDH, KARACHI & 10 OTHERS (2007 SCMR 134). The case before the Court was of promotion to BS-20 by a Diploma holder employee. The Court dealt with the subject and observed as follows: 5-C.P.No.78-K of 2015.doc - 14 - “7. The basic qualification for a professional engineer under the law is B.Sc. degree in engineering from a recognized institution in Pakistan and diploma in engineering is not a recognized qualification for a professional engineer in terms of PEC Act, 1976. The service rules governing the service of the petitioner (SCUG Service Rules, 1982) and the promotion policy of the Government of Sindh, would neither override the provisions of the above Act nor relax the requirement of basic qualification of professional engineer for a promotion to BPS-20 in the engineering branch of Government of Sindh. The relevant provision of SCUG Service Rules, 1982, is reproduced hereunder:-- “V-Engineering Branch. 1. Grade 20 By selection on merit from among the members of the service in Grade-19 of the Engineering Branch with at least 17 years experience as such in Grade-17 and above.” 8. The above rule envisages clearly that a person can be considered for promotion to BPS-20 in the Engineering Branch of Government of Sindh, subject to fulfilment of the condition of basic qualification of a professional engineer prescribed under Pakistan Engineering Council Act, 1976 and a diploma holder being not a professional engineer in terms of PEC Act, 1976 cannot hold a post carrying responsibilities of a qualified professional engineer. The eligibility of a person for promotion from BPS-19 to BPS-20 in the Engineering Department of Government of Sindh is subject to the fulfilment of the requirement of basic qualification with requisite experience as provided in SCUG Service Rules, 1982 in the relevant field therefore, neither any concession could be given to the petitioner in the matter of his eligibility to hold the post in BPS-20 nor the requirement of basic qualification could be relaxed by the Court or by Selection Board. The careful examination of rules on the basis of which petitioner asserted the claim of promotion to BPS- 20 against the post carrying responsibilities of a professional engineer, would show that his claim was without any substance and that a diploma holder on the basis of his experience alone, would stand at par to a person registered as professional engineer with Pakistan Engineering Council.” 18. The other case is a judgment of three members bench of this Court in the case of NAZIR-UL-HASAN & 2 OTHERS V/S SYED ANWAR IQBAL & OTHERS (2014 SCMR 1827). In this case, respondent No.1 was working as an Assistant Director BS-17. The petitioners were senior to him and were promoted to BS-18 despite the fact that petitioners were holding qualification of Diploma whereas respondent 5-C.P.No.78-K of 2015.doc - 15 - No.1 was Bachelor of Engineering (Electrical). The respondent No.1 challenged the promotions of petitioners in the High Court. The High Court set aside all promotions of petitioners on the ground that they did not hold valid engineering degree. This Court in the reported judgment has dealt with the matter and observed as follows:- “6. Admittedly the petitioners were Assistant Directors in the respondent Authority with at least 5 years service in the relevant field and hence in our opinion they fulfill the requirement. It would be seen that when the petitioners were considered for promotion in 2012 the rules in force were the Pakistan Standards Institution Recruitment Rules for class one posts wherein per rule 5 the post of deputy Directors to be filled in by promotion could be done from amongst Assistant Directors category one with at least 5 years service in the Institution. Nowhere in the said rules was it provided that they would be professional engineers or for that matter even diploma holders. If fact such condition is prescribed in rule 6 which provides for direct appointments whereby per the schedule to the same an Assistant Director must hold a Master’s Degree in Science or Bachelors Degree in Engineering in the specified field from a recognized university with at least 3 years experience in that field etc. Admittedly, the petitioners were appointed by promotion and hence in our opinion no such condition can be placed upon them as in the case of a direct appointees. Insofar as the case of Muhammad Younus Aarain (supra) is concerned, the same is distinguishable on facts as therein it was found that under Sindh Council Unified Grades Services Rules the basic qualification for promotion to BS-20 was that the candidates should have B.Sc. Degree in Engineering. As observed above this is not the case in the present matter. It would further be seen that now per section 26 of the Pakistan Standards and Quality Control Authority Act, 1996 rules have been framed which have been notified in the official gazette on 15th May, 2013. Under Rule 5 promotion to the post in BS-1 to 19 shall be made on the basis of seniority-cum- fitness etc. and he or she should also fulfil the conditions contained in schedule to the rules according to which for promotion to the post of Deputy Director Technical the eligible person would be an Assistant Director Technical and he should have 5 years experience in BS-17 in technical matters. Nowhere has it been prescribed that he or she should be a qualified engineer. 7. In the circumstances, we find that the impugned order has unnecessarily been influenced by the comments of the Pakistan Engineering Council that no post carrying any Engineering responsibility could be entrusted to non- engineering graduates. In our opinion, it is for the department/institution itself to determine as to whether the, persons in its service are fit to hold a particular position. In the present case it has been done by the 5-C.P.No.78-K of 2015.doc - 16 - authority and rules have been framed thereunder which have been followed by the promotes/petitioners. Consequently the impugned order is set aside and the promotion of the petitioners is upheld.” 19. On examination of above case law, we note that nowhere in the judgments, the government power to prescribe for qualification and other conditions of service for promotion to a post has been assailed nor the judgments have put any sort of embargo on the government in prescribing the qualification and other conditions of service for a post for the purpose of promotion. Having said this, the judgments as discussed above, have rather focused on the government power in this regard to be unfettered to the extent that it is not in derogation of any law or provisions of the Constitution. 20. Further, the main principle that is deductible from the above judgments of this Court is that it is the domain of the Government to decide whether a particular academic qualification of a civil servant/ employee is sufficient for promotion from one grade to another higher grade and whereas it is in the domain of the Pakistan Engineering Council to decide whether a particular academic qualification can be equated with another academic qualification but it has no power to say that the civil servants/employees holding particular academic qualification cannot be promoted from a particular grade to a higher grade. Thus on the basis of above pronouncements of this Court, it is clear that the notification dated 19.03.2014 cannot be validly or justifiably challenged on the ground that it impinges or infringes upon any of the provisions of PEC Act, 1976 and thus would be ultravires. No such finding can justifiably be recorded in that as it has been laid down quite empathetically that the government exercises its own power under the domain of law with regard to promotion of civil 5-C.P.No.78-K of 2015.doc - 17 - servants/employees under Sindh Civil Servants Act, 1973 and Rules made thereunder while PEC Act does not overreach or put an embargo upon the government in the matter of prescribing of qualification and other conditions of service of civil servants/employees for their promotion to higher grade. Yet again, we note that although the vires of notification dated 19.03.2014 has been challenged but we observe that this very notification has been issued under sub-rule (2) of Rule 3 of Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974, which rules have been made under section 26 of Sindh Civil Servants Act, 1973. Neither rule 3(2) of said rules nor section 26 of the Act, 1973 have been challenged nor their vires called in question before us. Thus from this also it is quite apparent that the petitioner does not challenge the government power for prescribing qualification and conditions of service of civil servants/employees for their promotion to higher grade. In any case, we note that the provisions of PEC Act nor the rules and regulations made under it will operate as bar on government to prescribe for qualification and other conditions of service of civil servants/employees for promotion to higher grade. 21. The PEC Act as its preamble itself shows so also reading of the whole Act shows that it essentially deals with regulations of engineering profession in it, inter alia, it prescribes for qualification of professional engineers, maintenance of register of professional engineers and accrediting of engineering universities etc and not as a regulator of employment be that be of government service or in the private service. The reasons for it could be found that all sort of engineering work could not be and may not be a professional engineering work for performance of which professional engineers are required. For example, technician, mechanic, draftsman, foreman, 5-C.P.No.78-K of 2015.doc - 18 - supervisor and overseer etc at best could be a skilled workman who may work independently or under the supervision of professional engineer and for such technician, mechanic, draftsman, foreman, supervisor and overseer the employer may not require holding of professional engineering degree. However, if the person is required to perform any of professional engineering work as defined under the PEC Act, the provisions of this Act will come into operation for ensuring as the work of professional engineer can and only be performed by professional engineer as recognized by PEC Act. The professional engineering work has been clearly defined under section 2(xxv) of the PEC Act which has already been reproduced above and lays down in sufficient details the works which are noted to be as professional engineering works and such works as mandatorily required by the PEC Act to be performed by a professional engineer possessing accredited engineering qualification from accredited engineering institutions in Pakistan and abroad with experience and passing of test of the Council and no other person is allowed to perform professional engineering works be that be a diploma holder or B.Tech. degree holder. This aspect of the matter has been substantially addressed by the PEC Act itself when making provision of section 27(5A) that “no person shall unless registered as a registered engineer or professional engineer, hold any post in an engineering organization where he has to perform professional engineering work.” Thus professional engineering work can only be performed by a person who is registered as registered engineer or professional engineer and both registered engineer and professional engineer in terms of the PEC Act are by law required to possess accredited engineering qualification as prescribed by the PEC Act from accredited engineering institution. 5-C.P.No.78-K of 2015.doc - 19 - 22. We may further observe that section 27 of the PEC Act provides for penalty for a person who undertakes any professional engineering work if his name is not borne on the Register but it also makes the employer who employs for any professional engineering work any person whose name is not, for the time being, borne on the Register to perform professional engineering work, shall also be liable for penalty as prescribed in the PEC Act itself. Thus both civil servant/employee and their employer would be liable to penalty as provided under section 27 if they undertake or allow a person to undertake professional engineering work whose name is not borne on register under PEC Act. 23. The net result of above discussion is that this petition fails. It is dismissed and leave refused, however with note of caution that government shall not allow or permit any person to perform professional engineering work as defined in the PEC Act, who does not possess accredited engineering qualification from the accredited engineering institution and his name is not registered as a registered engineer or professional engineer under the PEC Act. JUDGE Bench-IV Islamabad *Hashmi* JUDGE APPROVED FOR REPORTING JUDGE Announced in open Court on 03.10.2018 . JUDGE

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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 Jamal Khan Mandokhel Civil Petition No.78-Q of 2016 (Against the judgment dated 06.05.2016 passed by the High Court of Balochistan in C.R No.(S)32 of 2013) Abdul Ghani & others …Petitioner(s) Versus Haji Abdul Fatah & others …Respondent(s) For the Petitioner(s): Syed Ayaz Zahoor, Sr.ASC Mr. Gohar Yaqoob Yousafzai, AOR For Respondent No.1: Mr. Ghulam Mustafa Buzdar, ASC For Respondent No.2: Mr. Liaqat Ali Jatoi, ASC Date of hearing: 01.11.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Abdul Fateh, respondent, remained successful throughout downstairs to counter petitioners’ claim over the suit property. At the center of controversy is Mst. Sahib Khatoon; she mothered plaintiff/respondent from her wedlock with Muhammad Musa, however, contracted second marriage with Muhammad Raheem after former’s death, survived by Muhammad Ibrahim, issueless, leaving petitioners as distant kinder in the field; they laid claim over the disputed land, partly on account of their being residual successors of Muhammad Ibrahim and partly through a sale. The respondent came up with a Qabin-nama dated 29.6.1949 (Ex.P-3), purporting transfer of the land as dower to the lady, on the strength Civil Petition No.78-Q of 2016 2 whereof, a learned Civil Judge at Dhadar, District Khichi decreed the suit vide judgment and decree dated 31.12.2012, affirmed throughout lastly by a learned Judge-in-Chamber of the High Court of Balochistan vide judgment dated 06.05.2016, vires whereof, are being assailed on a variety of grounds. 2. Syed Ayaz Zahoor, learned Sr.ASC, contends that the Courts below ran into concurrence of error inasmuch as plaintiff’s claim, devoid of any proof, in the face of longstanding entries in the revenue record, reflecting multile mutations favouring the petitioners, there was hardly an occasion to uphold plaintiff’s claim; adds that Mst. Sahib Khatoon did not figure anywhere in the pedigree-table or in the revenue record whereas the petitioners, being rightful owners, are firmly entrenched in the suit property. None appeared to prove Ex.P-3 and as such acquisition of land partly through sale and partly through inheritance could not have been set aside. The learned counsel for the respondent has defended the impugned judgments being well reasoned, structured upon an ancient title document protected by the statutory presumption. 3. Heard. Record perused. 4. Position consistently taken by the petitioners, notwithstanding, Qabinnama Ex.P.3, insurmountably stands in impediment to acceptance of their claim, inasmuch as, being a document antedating a period far beyond 30 years, surfacing on the record from respondent’s custody, to be considered as proper, by all means, in circumstances, nullifies the hypothesis of residual bequeathal or the sale as they could not possibly acquire a better title after the land was once invested in Mst. Sahib Khatoon in pursuance thereto. Though the genuineness of Qabinnama Ex.P.3 has been disputed at the bar, however, upon our own examination, in the totality of circumstances and admitted nuptial bond between Muhammad Raheem and Mst. Sahib Khatoon, we entertain no manner of doubt that the disputed land was parted by the former as a dower to her better half as far back as on 29.6.1949 on an official stamp paper. Any manipulation, given the timeframe, is inconceivable, even by the best of foretellers. Consideration of Qabinnama Ex.P.3 in favour of the respondent by the Civil Petition No.78-Q of 2016 3 courts below, an exercise found by us, most prudent as well as within the remit of law, calls for no interference. Petition fails. Leave declined. Judge Judge Judge Quetta, the 1st November, 2021 Azmat/-

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE SARDAR TARIQ MASOOD. MR. JUSTICE FAISAL ARAB. CIVIL PETITIONS NO. 781 AND 896 OF 2016 AND C. M. A. NO. 1986 OF 2016 IN CIVIL PETITION NO. 781 OF 2016 A/W CIVIL PETITIONS NO. 207-K TO 208-K OF 2016. (On appeal against the judgment dated 07.03.2016 passed by the High Court of Sindh at Karachi in C. P. No. D-7769 of 2015). The Federation of Pakistan through Collector of Customs, Model Custom Collectorate, Islamabad. (CPs. NO. 781 & 896/16 & CMA. 1986/16 IN CP. 781/16) Sindh Education for Institution Development Society thr. its General Secretary, Karachi. (CP. 207-K OF 2016) Mahboob Ali Abro. (CP. 208-K OF 2016) …Petitioner(s) Versus Ayyan Ali and others. …Respondent(s) (in all cases) For the petitioner(s) : Mr. Farhat Nawaz Lodhi, ASC. (in CP.781/16) Syed Nayyab Hussain Gardezi, Standing counsel. (in CP.896/16) Nemo. (in CPs. 207-K to 208-K of 2016) Shahid Orakzai, in person. (in CMA.1986/16) For the respondent(s): Sardar M. Latif Khan Khosa, Sr. ASC. (in CP.781/16) Date of Hearing: 06.04.2016 (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 07.03.2016 of a CIVIL PETITIONS NO. 781 AND 896 OF 2016 AND C. M. A. NO. 1986 OF 2016 IN CIVIL PETITION NO. 781 OF 2016 A/W CIVIL PETITIONS NO. 207-K TO 208-K OF 2016. 2 Division Bench of the Sindh High Court, whereby it allowed the Writ Petition filed by respondent No. 1 and directed the Ministry of Interior to immediately remove the name of respondent No. 1 from Exit Control List (ECL) and allow her to travel abroad if she so desires. 2. The learned ASC for the petitioners contended that where the respondent is charged under Section 156(1)(viii) read with Section 2(s)(ii) of Customs Act, Section 8 of FER Act and Section 3(1) of Import and Export (Control) Act, 1950, removal of her name from the ECL would amount to letting her off for good notwithstanding the case against her is still pending in the Customs Court. The learned ASC next contended that where Section 3 of the Exit from Pakistan (Control) Ordinance, 1981 provided alternate remedy by way of review, resort could not be had to the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan. The learned ASC next contended that it is the prerogative of the Government to place the name of any person on the ECL if he or she is involved in corruption and misuse of power and authority causing loss to the government’s funds or property; economic crimes where large government’s funds have been embezzled or institutional frauds have been committed; acts of terrorism or its conspiracy, heinous crimes threatening national security; case of key directors of a firm, in default of tax or liabilities of not less than ten million rupees; case of two or more key or main directors of a firm, in default of loan or liabilities exceeding one hundred CIVIL PETITIONS NO. 781 AND 896 OF 2016 AND C. M. A. NO. 1986 OF 2016 IN CIVIL PETITION NO. 781 OF 2016 A/W CIVIL PETITIONS NO. 207-K TO 208-K OF 2016. 3 million rupees; any case in which his or her name has been forwarded by the Registrar of a High Court, Supreme Court of Pakistan or Banking Court; or drug trafficking, therefore, the High Court could not have interfered therewith. 3. As against that learned ASC appearing on behalf of the respondent contended that the movement of the respondent, who has been charged under Section 156(1)(viii) read with Section 2(s)(ii) of Customs Act, Section 8 of FER Act and Section 3(1) of Import and Export (Control) Act, 1950, could not be prohibited by placing her name on the ECL that too when she has not committed any of the crimes listed in Rule 2 of the Exit from Pakistan (Control) Rules, 2010. The learned ASC went on to argue that remedy of review could not be insisted upon when it is inadequate and even illusory, nor could the remedy granted by the High Court through a petition under Article 199 of the Constitution be recalled or rescinded on this score. The learned ASC to support his contention placed reliance on the case of Muhammad Aslam Vs. Senior Member (Colonies), Board of Revenue, Punjab and others (2004 SCMR 1587). He lastly contended that mere pendency of a criminal case cannot furnish a justification for prohibiting the movement of any citizen in contravention of the provisions contained in Article 15 of the Constitution of the Islamic Republic of Pakistan. 4. We have gone through the entire record carefully and considered the submissions of the learned ASCs for the parties. CIVIL PETITIONS NO. 781 AND 896 OF 2016 AND C. M. A. NO. 1986 OF 2016 IN CIVIL PETITION NO. 781 OF 2016 A/W CIVIL PETITIONS NO. 207-K TO 208-K OF 2016. 4 5. Respondent No. 1, no doubt, has been charged in a case mentioned above which is still pending adjudication in the competent Court of law. But mere pendency of a criminal case cannot furnish a justification for prohibiting her movement. It has never been the case of the petitioners that the respondent is involved in any of the cases listed in Rule 2 of the Exit from Pakistan (Control) Rules, 2010 in general or Rule 2(1)(b) in particular, inasmuch as she has not been charged to have embezzled a large government’s funds or committed institutional fraud. In the absence of any such allegations, we don’t think the respondent’s movement could be prohibited under the Ordinance or the Rules mentioned above. We, however, don’t agree with the argument of the learned Sr. ASC for the respondent that remedy by way of review is inadequate or illusory because such argument would tend to defeat the letter and spirit of Section 3 of the Ordinance. Such argument would also tend to defeat the letter and spirit of Article 199 of the Constitution which provides that “a High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of any aggrieved party, make an order.” The words used in the Article cannot be lightly ignored or overlooked. Though we don’t feel inclined to recall and rescind the relief granted to the respondent by the High Court on this score at this stage, when we don’t see any tenable ground for prohibiting the movement of the respondent, all the same we would not approve of bypassing a forum provided by law. CIVIL PETITIONS NO. 781 AND 896 OF 2016 AND C. M. A. NO. 1986 OF 2016 IN CIVIL PETITION NO. 781 OF 2016 A/W CIVIL PETITIONS NO. 207-K TO 208-K OF 2016. 5 6. The apprehension of the learned ASC for the petitioners that where the respondent has been charged for committing serious offences as mentioned above, removal of her name from ECL would amount to letting her off for good, is misconceived as despite removal of her name from ECL, her attendance could still be enforced or dispensed with by the Trial Court in conformity with the relevant provisions of the Cr.P.C. 7. For the reasons discussed above, these petitions being without merit are dismissed and the leave asked for is refused. JUDGE JUDGE JUDGE Announced in open Court at Islamabad on 13.04.2016. JUDGE ‘Not Approved For Reporting’ M. Azhar Malik

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{'id': 'C.P.L.A.781_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE MIAN SAQIB NISAR CIVIL PETITIONS NO.784 AND 853 TO 876 OF 2014 AND CRIMINAL ORIGINAL PETITIONS NO.48 & 54 OF 2014 (Against the judgment dated 17.5.2014 of the Islamabad High Court, Islamabad passed in Writ Petitions No. 1789, 1949, 1866, 1861, 1860, 1973, 1865, 2045, 2277, 1974, 2167, 2264, 2061, 2166, 1972, 1971, 1859, 2057, 2055, 2056, 2060, 1864, 2059, 2082 & 2058 of 2014) M/o IPC through its Secretary etc. …in C.P.784, 854 to 876/2014 Chairman Management Committee PCB etc. … in C.P.853/2014 Arbab Altaf Hussain … in Cr.O.P. 48/14 Adnan Ahmed Siddiqui … in Cr.O.P. 54/14 …Petitioner(s) VERSUS Arbab Altaf Hussain etc. … in C.P.784/2014 Sanobar Gul etc. … in C.P.853/2014 Muhammad Irfan etc. … in C.P.854/2014 Farrukh Munir Chaudhry etc. … in C.P.855/2014 Aneela Arshad etc. … in C.P.856/2014 Adnan Ahmed Siddiqui etc. … in C.P.857/2014 Ihtesham-ul-Haq etc. … in C.P.858/2014 Syed Tanveer Jafri etc. … in C.P.859/2014 Commodore (R) M. Arshad Hussain etc. … in C.P.860/2014 Amjad Ali etc. … in C.P.861/2014 Muhammad Ilyas etc. … in C.P.862/2014 Ejaz Hussain etc. … in C.P.863/2014 Muhammad Liaquat etc. … in C.P.864/2014 Syed Azhar Ali Shah etc. … in C.P.865/2014 Alveena Tariq etc. … in C.P.866/2014 Muhammad Akhtar etc. … in C.P.867/2014 Syed M. Akram Shabbir Gillani etc. … in C.P.868/2014 Idrees Ali etc. … in C.P.869/2014 Muhammad Faisal etc. … in C.P.870/2014 Nabeel Edger Pace etc. … in C.P.871/2014 Muhammad Asim etc. … in C.P.872/2014 Shahnaz Asif etc. … in C.P.873/2014 Waseem-ud-Din etc. … in C.P.874/2014 Salman Ahmed Shah etc. … in C.P.875/2014 Sajid Yasin Hashmi etc. … in C.P.876/2014 Najam Aziz Sethi etc. … in Cr.O.P. 48/14 Secretary M/o IPC Islamabad etc. … in Cr.O.P. 54/14 …Respondent(s) For the petitioner(s): (in C.Ps.784, 854 to 876/2014) Mrs. Asma Jehangir, Sr. ASC Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 2 :- For the petitioner(s): (in C.P.853/2014) Malik Muhammad Qayyum, Sr. ASC Mr. Taffazul H. Rizvi, ASC Mr. C.M. Lateef, AOR For the petitioner(s): (in Cr.O.Ps.48 & 54/2014) Sahibzada Ahmed Raza Kasuri, Sr. ASC For respondent No.1: (in C.Ps.784, 854 to 857, 866, 868 & 873/2014) Sahibzada Ahmed Raza Kasuri, Sr. ASC Ms. Tasneem Amin, AOR For respondents (2, 4, 5, 8 to 13): (in C.P.784/2014) Malik Muhammad Qayyum, Sr. ASC Mr. Taffazul H. Rizvi, ASC Mr. C.M. Lateef, AOR For the respondent(s): (in C.Ps.859 & 860/2014) Mr. Imtiaz Rashid Siddiqui, ASC Syed Hasnain Ibrahim Kazmi, ASC For respondent No.2: (in C.P.875/2014) Raja Ghazanfar Ali Khan, ASC For respondent No.1: (in C.Ps.853 & 862/2014) Ghulam Asghar Khokhar, ASC For the Federation: Mr. Salman Aslam Butt, Attorney General for Pakistan Mr. Waqas Rana, ASC/Consultant to A.G. Mr. Taimur Khan, Consultant to A.G. Mr. Najam Aziz Sethi, in person Respondents/Employees of Cricket Board: Faisal Rai, in person Nabeel Edger Pace, in person Ehtisham, in person Irfan, in person Adnan Siddiqui, in person Akram Gillani, in person Ilyas Ahmed, in person Date of hearing: 21.07.2014 … JUDGMENT MIAN SAQIB NISAR, J.- The matter came up for hearing before this Court on 21.7.2014 and vide short orders, these petitions were converted into appeals and allowed in the following terms:- “After hearing the arguments of learned ASCs for the parties and some of the respondents in person, for reasons to be recorded separately, this petition is converted into appeal and allowed; impugned judgment dated 17.5.2014 is set aside. In the light of the new Constitution of the Board, enforced vide notification dated 10.7.2014, the Patron is required to appoint Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 3 :- Acting Chairman for the intervening period and also the Chief Election Commissioner within one week to hold free and fair elections within the period prescribed by the notification(s) dated 10.7.2014. It may be mentioned here that Mr. Najam Aziz Sethi has made a statement before the Court that he shall not be contesting forthcoming elections for the post of Chairman, PCB. Other pending applications, including Criminal Original Petitions No.48 & 54 of 2014 are also disposed of accordingly. For reasons to be recorded separately, these petitions are converted into appeals and allowed; the judgment impugned therein is, therefore, set aside as the petitions filed by the respondents before the Islamabad High Court were, inter alia, incompetent; the Board having no statutory rules. Besides, their appointments were on contract basis. Other pending applications are also disposed of accordingly.” (This order be read as integral part of this opinion) 2. The backdrop of this case has nexus with the appointment of Mr. Zaka Ashraf as the Chairman of the Pakistan Cricket Board (PCB or the Board), vide notification dated 13.10.2011. This appointment (election) was assailed by one Major (R) Nadeem Ahmed through Writ Petition No.2242/2013 in the Islamabad High Court on 25.5.2013 and by an order dated 28.5.2013, the learned single Judge-in-Chamber restrained Mr. Zaka Ashraf from performing his duties as the Chairman. Vide another order dated 13.6.2013, the Islamabad High Court directed the Ministry of Inter Provincial Coordination (IPC) to appoint someone as the acting Chairman of the Board. Pursuant to the above, IPC placed three names before the Islamabad High Court for approval of one of them to act as the Chairman, but before an order could be passed by the Court; the Patron nominated Mr. Najam Sethi as the acting Chairman vide notification dated 22.6.2013. However, ultimately vide judgment dated 4.7.2013 the noted writ petition was allowed and the appointment of Mr. Zaka Ashraf as the Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 4 :- Chairman of the PCB was set aside/annulled. The salient features of this judgment are reflected in paragraphs No.21 to 25 thereof, in that, a direction was issued for the special audit of the PCB during the period when Mr. Zaka Ashraf was the Chairman of the Board; Part IV of the PCB Constitution was declared to be void ab initio and a direction was issued to the Election Commission of Pakistan for holding of the election(s) of the PCB (for the Board as a whole) within 90 days. Furthermore, Mr. Najam Sethi was directed to act as the caretaker Chairman, till the time a new Chairman was elected in terms of the said judgment. This judgment dated 4.7.2013 was assailed by Mr. Zaka Ashraf and the present petitioner vide intra court appeals (ICA No.1033/2013 and ICA No.938/2013 respectively) which were allowed by the Division Bench of the High Court on 15.1.2014, and the judgment of the single Judge-in-Chamber was set aside. The effect of this judgment is clear from the operative part thereof which is reproduced as under:- “In view of the aforementioned facts, we have come to the conclusion that the impugned judgment, was outside the ambit of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and is therefore, liable to be set aside. The respondent Chaudhry Muhammad Zaka Ashraf was removed from the post of Chairman, Pakistan Cricket Board in violation of principle of natural justice, as no opportunity of hearing was provided to him at the time of removal, so by setting aside the impugned judgment, we order restoration of Chaudhry Muhammad Zaka Ashraf as Chairman, Pakistan Cricket Board. All the decisions taken by PCB or I.M.C. during interim period, would be considered as legal and would stand validated. Since the appointment of Interim Management Committee was temporary, so with the pronouncement of this judgment, the said Committee would Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 5 :- stand dissolved. The situation of Pakistan Cricket Board would come back to the day when the writ petition was filed.” This judgment was challenged by the present petitioner (IPC) vide Civil Petition No.61/2014 which was dismissed as withdrawn by this Court on 31.1.2014. The following part of the order is relevant:- “8. The record reveals that the learned Single Judge in chambers at Islamabad High Court passed the order restraining respondent No.1 to function as Chairman, Cricket Board at the initial stage of the proceedings. This order created a vacuum which necessitated measures for a stop gap arrangement. At the end of the day, when the Intra Court Appeal was allowed and respondent No.1 was restored, the vacuum thus created has filled. Once the vacuum was filled, we do not understand how the interim or stop gap arrangement or set up created during the interregnum can endure. The interim set up created pursuant to inter-locutory or final orders passed by the learned Single Judge of the High Court in its Chambers in Writ Petition No.2242 of 2013 will evaporate with their reversal on acceptance of appeal. Therefore, we do not agree with the learned ASC for the petitioner that the set up created during the interregnum can have any existence after the parties were brought to the position as was existing at the time of commencement of action. 9. The argument addressed in the alternative that even if the set up thus created during the interregnum cannot endure, the power of the Government to hire and fire cannot be restricted by any observation made in the impugned judgment, seems to have flowed from on apprehension which is more Imaginary than real. There is absolutely nothing in the impugned judgment, nor there can be, as could restrict the power of the Government to do what it is required by law to do. When faced with this situation, the learned ASC for the petitioner straightaway asked for withdrawal of her petition in the terms mentioned above (emphasis supplied by us).” Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 6 :- 3. Vide notification dated 30.1.2014 issued by the Federal Government an amendment was introduced in the Constitution of the PCB and instead of the President of Pakistan, the Prime Minister of Pakistan was made the Patron (of the PCB). Furthermore vide notification dated 10.2.2014 another amendment was made therein (in the Constitution) to the effect that Section 41 was substituted, to read as follows:- “41. Supersession of the Board.- (1) When the Patron is of the opinion that the Board is unable to perform its functions properly in accordance with this Constitution he may, by order in writing, supersede the Board and constitute a Management Committee comprising upto eleven members, for the performance of the functions of the Board: Provided that upon an order of supersession the Board of Governors shall stand dissolved and the Chairman shall stand removed. Provided further that such supersession shall not remain in force for a period of more than one hundred and twenty days unless extended by the Patron for reasons to be recorded in writing. (2) The Management Committee shall elect one of its members to be its Chairman who shall also be the Chairman of the Board. (3) The Management Committee shall assume and discharge all or any functions of the Board and references in this Constitution to the Board of Governors and the Chairman shall deemed to be a reference to the Management Committee. (4) The Patron may also assign additional functions to the Management Committee for the promotion and development of Cricket. (5) All acts done, proceedings taken and contract entered into by the Management Committee shall be deemed to have been done, taken and entered into lawfully and validly and shall be binding on the Board.” The same day (i.e. 10.2.2014) vide another notification No.4-14/2008-IPC- S-II, the Board, which was restored by the learned Division Bench of the Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 7 :- High Court through its verdict dated 15.1.2014, was superseded by the Patron in exercise of his power under Section 41 thereof (the amended Constitution) and an Interim Management Committee (IMC) was formed to run the affairs of the PCB in place of the superseded Board. This supersession as mandated by law was for a period of one hundred and twenty days. The contents of the notification are:- “No.4-14/2008-IPC-S-II. Whereas there is an emergent need to streamline the affairs of Pakistan Cricket Board (PCB) and to align its constitution towards representative governance, to contain principles of financial discipline, to provide guiding principles for promotion of the game of cricket as per the international best practices, and to eliminate the chances of corrupt and arbitrary practices, and to organize cricketing bodies in a fair and transparent manner; And whereas there are serious issues in the management of PCB, repugnant to the aims and objects of PCB and that there is an immediate and emergent need to take necessary measures to improve the management of PCB as well as to streamline the game of cricket at all levels in Pakistan; Now, therefore, under the powers conferred upon the Patron under paragraph 41 of the PCB constitution as amended vide SRO dated 10th February 2014, the Prime Minister of Pakistan being Patron PCB has been pleased to constitute the following Management Committee for performance of the functions of the Board with immediate effect: i. Mian Sheharyar Khan, Ex-Chairman PCB. ii. Mr. Najam Aziz Sethi, Ex-Acting Chairman PCB iii. Mr. Zaheer Abbas, Ex-Captain Pakistan Cricket Team. iv. Mr. Naveed Akram Cheema, Chief Secretary Punjab. v. Secretary, Ministry of IPC. vi. Mr. Shakil Sheikh, Ex-Member BOG, Islamabad/Rawalpindi. vii. Mr. Yousaf Naseem Khokhar, Ex-Member, BOG from Wapda. viii. Mr. Iqbal Qasim, ex-test Cricketer/Ex-member of BOG from National Bank of Pakistan. Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 8 :- 2. It shall elect one of its members as Chairman, who shall be the Chairman PCB.” Pursuant to the above notification and in terms of sub-para 2 thereof Mr. Najam Sethi was elected as the Chairman PCB. It may be mentioned here that these two notifications; the one amending the Constitution (of PCB) and the second superseding the Board of which Mr. Zaka Ashraf was the Chairman were never ever challenged by him (Mr. Zaka Ashraf) or any other Board Member(s) (who were thirteen in number); except Commodore (R) M. Arshad Hussain, and this remains to be the position till 10.7.2014, when the Federal Government has enforced a new Constitution of the Board. Be that as it may, during this period the services of certain employees of the Board were terminated, including one Arbab Altaf Hussain (respondent No.1 of C.P.L.A.No.784/2014) whose service was terminated on 28.3.2014 by the Director Human Resource and Administration (Director HR & A) of PCB. He was the first to file a Writ Petition No.1789/2014, primarily challenging his termination order, and it is only in the above context that the supersession notification was also assailed. Some other employees of PCB who were similarly placed (their services also terminated) filed the akin petitions (in some cases however the notification was not challenged). 4. For the first time Commodore (R) M. Arshad Hussain (a member of the superseded Board) filed a Writ Petition No.2277/2014 before the Islamabad High Court on 10.5.2010 in which Mr. Zaka Ashraf was arrayed as one of the respondents. It may be relevant to mention here that the term of office of Mr. M. Arshad as a Board member admittedly was for a period of one year. His appointment is dated 13.5.2013, which term was to expire on 12.5.2014 and the petition was filed by him just two days (on 10.5.2014) before the expiry of his term. In this petition, Mr. Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 9 :- Zaka Ashraf at some point of time (note: must be between 12th to 14th of May --- without yet being served in the matter) moved an application for his transposition as a petitioner, but there is no order of the Court in respect of his transposition request. Anyhow, all these petitions which were twenty- five in number were clubbed and heard together and have been decided by the single Judge-in-Chamber of the Islamabad High Court vide impugned judgment dated 17.5.2014; whereby the notification dated 10.2.2014 (by virtue whereof the Board of Governors was superseded) has been declared illegal and unlawful. The main reasons in this regard are:- that the supersession is not inconsonance with the power available to the Patron in terms of Section 41 of the PCB Constitution; the object of supersession and the reasons for the interim set up were missing; that the Interim Managing Committee (IMC) has exercised certain power beyond its mandate; there was no material justifying the supersession and thus such action is arbitrary and mala fide. Thus on the basis of these broad reasons, the court came to the conclusion “Therefore, the impugned Notification dated 10.02.2014 superseding duly elected Body of Pakistan Cricket Board without assigning any reason nor any instance shown is required to be struck down. The same is, therefore, hereby annulled. The acts down orders based on long term nature by employing remaining or any other order of like nature passed by the interim Management Committee during such period are also struck down being excessive of their powers”. As a consequence of the impugned judgment, besides the revival of superseded Board, the termination of the employees has been annulled. The above judgment has been challenged before this Court in Civil Petition No.784/2014 (and other connected matters) and on 21.5.2014 this Court was pleased to suspend the impugned judgment in the following terms:- Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 10 :- “We have heard the learned ASC for the petitioner. Issue notice to the respondents for 27.5.2014. Till then, operation of the impugned judgment shall remain suspended.” On 27.5.2014 however another order was passed, in that, “At the joint request of learned ASCs for the parties, the hearing of main petition and the stay application is adjourned for two weeks. It is expected that in the meantime, parties will maintain status-quo vis-à-vis the contesting respondents”. 5. The matter came up for hearing before this Court on 26.6.2014 and the case was partly heard. When it came up for hearing on 10.7.2014, Mr. Salman Aslam Butt, the learned Attorney General for Pakistan appearing for the Federal Government informed the Court that a new Constitution of the Board is being enforced; the Managing Committee headed by Mr. Najam Sethi is being dispensed with, and a new Board of Governors is being constituted. During the course of hearing it was further divulged that pursuant to the new Constitution and the steps to follow, Mr. Najam Sethi shall be one of the nominees of the Patron on the Board of Governors. About this new development, Mr. Imtiaz Rasheed Siddiqui, learned ASC appearing for Mr. Zaka Ashraf when queried, has categorically, unequivocally and unambiguously stated, that he has discussed the above expected development with Mr. Zaka Ashraf, who is abroad. He and his client has no objection qua the enforcement of the new Constitution; the holding of the elections thereunder. His client however for the vindication of his position shall request the Court for his reinstatement as per the impugned judgment, and simultaneously shall resign, without taking over as the Chairman PCB even for a single moment. But Mr. Siddiqui expressed serious reservation about the inclusion of Mr. Najam Sethi as one of the nominees of the Patron on the proposed PCB Board, on the ground that Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 11 :- this is an ulteriorly motivated move and the object and intention behind is to bring back Mr. Sethi as the Chairman, in an oblique and indirect way. This according to him shall be a colourable exercise of jurisdiction and a mala fide act. It is meant to ultimately bring him back as the Chairman, through a dubious mean. Anyhow the case was adjourned to 11.7.2014 to have the view point of Mr. Sethi in the context of above objection and the plea. On the said date (11.7.2014) three notifications were also produced on the record by the learned Attorney General vide C.M.A.No.3933/2014. The first notification is about the promulgation of the new Constitution of the PCB. By virtue of second notification SRO No.1/2014 (in supersession of office letter No. F.No.4-14/2008-IPC(S-II) dated 6th June, 2014 and SRO dated 10.2.2014), the Patron appointed Mr. Justice (R) Syed Jamshed Ali Shah, the former Judge of the Supreme Court of Pakistan as the Election Commissioner of PCB with immediate effect as per the requirement of Part-IV of the new Constitution of PCB; the Managing Committee headed by Mr. Najam Sethi ceased to exist and the newly appointed Election Commissioner (named above) was to take over the charge of Chairman PCB who was to ensure the conduct of elections within thirty days from the date of assumption of the office as the Chairman PCB. This all was required to be done in terms of the new Constitution. Vide same notification as per Article 10 of the new PCB Constitution, the composition of the Board of Governors was postulated and Mr. Najam Sethi and Mr. Iqbal Umer, the two Members of the Board of Governors were nominated by the Patron in his discretion (as envisaged by Article 10(d) of the new Constitution). According to third notification No. F.No.4-14/2008-IPC(S-II), it was mandated that Mr. Justice (R) Syed Jamshed Ali Shah shall take over as the Chairman of PCB with immediate effect from today. Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 12 :- 6. On 11.7.2014 Mr. Najam Sethi was also present in the Court who came forward to express his view point and stated that he in the first place was never keen to be appointed as Chairman PCB, but the Patron reposed confidence in him and he has worked hard for the revamping of the Board and promotion of Cricket in Pakistan. It is on account of his honest endeavors that the Board’s function, prestige etc. has been improved and restored. Once again, if the Patron (the Prime Minister) wants him to continue serving the Board in any capacity, he cannot disappoint the Patron and say no to him. Be that as it may, on the said date the operation of two out of three notifications dated 10.7.2014 (except through which the Constitution was enforced --- brought on the record vide C.M.A.No.3933/2014) was suspended and the matter was listed for hearing on 21.7.2014. 7. Ms. Asma Jehangir, learned counsel for the petitioner in continuation of the earlier submissions made on 26.6.2014 argued that the supersession notification dated 10.7.2014 is well within the purview of the provisions of Section 41 of the PCB Constitution and the authority available to the Patron thereunder; the opinion has been formed by the Patron on the basis of adequate material justifying that the Board is unable to perform its functions properly in accordance with the PCB Constitution, thus it is in valid exercise of his jurisdiction and the Board headed by Mr. Zaka Ashraf was lawfully superseded. Moreover she contended that none of the writ petitioners/respondents had any locus standi to challenge the notification of supersession dated 10.2.2014; Mr. Zaka Ashraf or any other Board member who were superseded never ever challenged the supersession order, except Commodore (R) M. Arshad Hussain, who in the facts and circumstances of the case had no locus standi to do so, because his term as a Member Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 13 :- of the Board was to expire on 12.5.2014, whereas the writ petition bearing No.2277/2014 was filed by him on 10.5.2014, which was a Saturday and when it came up for final hearing on 15.5.2014, he virtually was not a Member of the Board; that Commodore (R) M. Arshad Hussain was estopped by his own conduct to file such belated petition which was hit by the rule of laches, and the principles of acquiescence, waiver are also duly attracted to his case. Furthermore, she submitted that from the contents of his petition, it is quite clear that Commodore (R) M. Arshad Hussain was/is neither pursuing his own cause in a bona fide manner, nor does he come to the Court with clean hands, rather this is a proxy petition, as he is primarily seeking the reinstatement of Mr. Zaka Ashraf. As regards the other writ petitioners/respondents, it is submitted that they were all contractual employees of the Board and their services were terminated by the competent authority in the Board (e.g. in the case of Arbab Altaf Hussain by Director HR & A) after giving one month’s notice as per the terms and conditions of their service. The issue of supersession of the Board in the context of the termination of the employees was not relevant and, therefore, while examining the validity of their termination, the learned High Court in exercise of its jurisdiction under Article 199 of the Constitution of Pakistan 1973, in the garb of such petitions could not determine the vires of the supersession action. Without prejudice to the above, it is also submitted that the very writ petitions filed by the employees were incompetent and not maintainable in law, because not only that they were in the contractual employment of the Board, rather their rules of service were non-statutory in nature and resultantly, the writ petitions should have been dismissed on this score alone; in any case the employees in the facts and circumstances of the present case Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 14 :- had no locus standi to challenge the supersession order of the Board dated 10.2.2014; it was/is also not permissible for the employees to make a collateral attack on the supersession action of the Board, in the garb of challenging their termination of contractual employment. 8. During the course of her submissions Ms. Asma Jehangir, learned counsel in view of certain observation of the Court sought some time to ponder qua the response thereto; one hour was granted for the above. On resumption of hearing, Mr. Najam Sethi who was present in the Court throughout the proceedings (since morning) came to the rostrum and stated that the only objection of the respondent Mr. Zaka Ashraf is that by virtue of his nomination as a member of the new Board he shall be elected as the Chairman of the Board. But while hearing the proceeding of the case, he has decided not to contest the forthcoming elections for the office of Chairmanship under the new Constitution (such statement is also reflected in the short order reproduced above). Mr. Imtiaz Rasheed Siddiqui, learned ASC when asked to comment upon the above, states that though his client (he himself) has no intention to resile from earlier commitment made before the Court in respect of accepting the new Constitution and the steps to be taken thereunder, but as the petitioners have argued the case in the first part of the day on merits therefore, he would also make his legal submissions. Be that as it may, in order to avoid any confusion, we have again asked Mr. Siddiqui if he accepts the new Constitution and the holding of elections according to it, he very candidly and unequivocally affirms the same. Be that as it may, we have still allowed him to make his submissions. It is argued that this entire exercise of supersession is mala fide; meant to circumvent, nullify and frustrate the judgment of the High Court passed in ICA dated 15.1.2014; there was no material available with the Patron Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 15 :- to form an honest opinion, that the Board is unable to perform its functions properly in accordance with the Constitution. He has also made reference to the summary submitted by the concerned ministry to the Patron for the purposes of supersession, to argue that from the contents thereof it is clear that the entire exercise of supersession is manipulation and a preplanned action; the Patron has not formed any independent opinion as is required by Section 41 ibid; that there was no waiver on part of Mr. Zaka Ashraf at any point of time for the reason that Commodore (R) M. Arshad Hussain, one of the Board Members, had filed the writ petition in which Mr. Zaka Ashraf was arrayed as a respondent, an application was moved for transposition as the petitioner, and thus for all intents and purposes he shall be deemed as a petitioner in the cause of challenging the supersession order dated 10.2.2014. Besides, it is argued that one Mr. Rafiq Bogio another Member of the Board had also challenged the supersession action and, therefore, regardless that no direct challenge was thrown by Mr. Zaka Ashraf; these challenges by the aggrieved persons who were deprived of their vested right to be the Members of the Board was good enough to assail the supersession. He submitted that the impugned judgment is in rem and all the affected persons shall be entitled to take the benefit of the said verdict. It is also argued that on account of the new Constitution Mr. Zaka Ashraf and the other Board Members cannot be deprived of their vested right, which right stands created in their favour on account of the two judgments of the High Court, one passed in ICA dated 15.1.2014 and the other impugned in the present petition. He has also submitted that in the facts and circumstances, no question of waiver, estoppel and acquiescence shall arise or is even relevant. Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 16 :- 9. Sahibzada Ahmed Raza Kasuri, learned ASC who is representing the respondents (the writ petitioners) in other case, who were the employees of the Board and whose services have been terminated, has argued that their termination is mala fide; they have been dislodged by the IMC illegally and without jurisdiction; the respondents are in permanent and regular employment of PCB; and that their services are governed and regulated by the statutory rules, therefore, it is misconceived to argue that such writ petitions filed by them were incompetent. 10. Heard. Before proceeding further with this opinion, and avoiding unnecessary comments, we are constrained to observe that on account of the above litigation immense damage has been caused to the PCB in particular and Pakistan Cricket in general at all the levels, the domestic and international. The individuals might have gained or suffered, but it is the institution (PCB) which has been impaired excessively in all respects. The smooth functioning, prestige, prominence of PCB has been seriously hampered. The institution (PCB) has been in doldrums and hiccups since the time of commencement of this litigation. These all are publicly known facts. The people of Pakistan who have great passion for the game of cricket, are really concerned and earnestly desire and want PCB to emerge as a strong, independent, democratic and accountable institution. Most likely it is pursuit of the above objective and in line with the spirit thereof, that the Federal Government formed a Committee comprising of Mr. Justice (R) Faqir Muhammad Khokhar and Mr. Justice (R) Syed Jamshed Ali Shah (both the Hon’ble former Judges of the Supreme Court) to formulate and prepare a Constitution of PCB. The Constitution as proposed by the Committee has now been enforced vide notification dated 10.7.2014 and this was Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 17 :- accepted before us by all the stakeholders. Mr. Zaka Ashraf in particular (through his counsel) has avowedly accepted the same and for the holding of the fresh elections of the Board thereunder. Besides, as a Court of Appeal, we can take notice of this vital development which seemingly is for the betterment of the Board and the Cricket as a whole, in the country. Therefore while formulating this opinion we cannot remain oblivious of the subsequent development; the undertaking given by Mr. Zaka Ashraf in the Court; his conduct (which shall be highlighted in the preceding part of this judgment) after the supersession action, till date; the statement of Mr. Sethi made before us; the conduct of other writ petitioner Mr. Arshad; the legal constrains of the employees/respondents in invoking the constitutional jurisdiction of the learned High Court. Thus we are refraining ourselves from examining and dilating upon the vires of the supersession notification, especially when on account of the above factors, the main focus of the learned counsel for the parties has been on the aforestated points, and full- fledge arguments were neither addressed nor the record in depth was discussed and debated upon in this regard. 11. In the context of above, there are three sets of respondents before us (1) Mr. Zaka Ashraf, (2) Commodore (R) M. Arshad Hussain, (3) the employees of the Board. They all are the beneficiaries of the judgment and thus have to defend the same. The first in chain is Mr. Ashraf who is a key character of this entire controversy. He was removed from the post of Chairmanship of PCB and stands restored on the basis of the impugned judgment. Thus he is the prime beneficiary of the judgment. Therefore, an important question which arises for consideration is, whether he shall be able to defend the said judgment on account of his conduct till date, after Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 18 :- the supersession order was passed. In this regard the following aspects are relevant:- (A) Mr. Zaka Ashraf has never ever personally come forward to challenge his removal and supersession of the Board; therefore, he shall for all intents and purposes be considered to have accepted the supersession and acquiescenced thereto, as per the definition of ‘acquiescence’ provided by the Black’s Law Dictionary 8th Edition meaning “persons tacit or passive acceptance; implied consent to and act”. This is aptly applicable to him; besides the doctrine of acceptance by silence can also be legitimately invoked against Mr. Zaka Ashraf in this context; (B) on account of his promise and undertaking given to this Court which has been highlighted in the preceding part of this opinion, Mr. Zaka Ashraf had accepted the new Constitution; the holding of fresh elections. And the only reason upon which his objection was founded, that Mr. Najam Sethi should not become the Chairman in an oblique way, this possibility due to the statement of Mr. Sethi has vanished, who has changed his course on account of such objection and the grouse is no more available to Mr. Zaka Ashraf now. Therefore on account of the above Mr. Zaka Ashraf is estopped by his own conduct to take a different stance and defend the impugned judgment; (C) the argument that Mr. Zaka Ashraf has made an application to be transposed as a co-petitioner in the writ petition filed by Commodore (R) M. Arshad Hussain and thus he should be considered to be the co- petitioner when such request was not declined by the learned High Court, this aspect shall be explained in the succeeding part of the judgment; (D) regardless, that the impugned judgment is in rem or in personam, after the statement of Mr. Sethi and in view of Mr. Zaka Ashraf’s undertaking, he is left with no cause to defend the impugned judgment. It may be pertinent to mention here that Mr. Imtiaz Rasheed Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 19 :- Siddiqui, passingly, has also argued that according to the provisions of Section 4 of the Sports (Development and Control) Ordinance, 1962, the Federal Government though can give a Constitution for the first time for a Sports Board created under the provisions of the Ordinance ibid, but there is no power in the said Ordinance enabling the Federal Government to make any amendment in such Constitution or to substitute that Constitution with a new one. And that too, with an object to divest and deprive the key office holders from their vested right to occupy the same. We do not find any force in this submission, because an authority which has the power to enforce law, shall necessarily has the power to repeal the law; to amend the same; and even to substitute the law by repealing the earlier law on the subject, provided it is otherwise within the legislative competence of that authority (note:- it may be pertinent to mention here that the above principle in no way should be construed to apply for the amendment etc. to the Constitution of Islamic Republic of Pakistan, 1973 because such issue is not before us for the determination). 12. Now attending to the case of Commodore (R) M. Arshad Hussain, it seem relevant to refer to the gist of averment of his writ petition, wherefrom it transpires that he in fact is agitating for the reinstatement of Mr. Zaka Ashraf who was arrayed as respondent No.13 in the matter, as otherwise his term of office had almost expired by the time the writ petition was filed by him i.e. 10.5.2014. The supersession had taken place on 10.2.2014, he remained mum for a period of almost three months; no explanation is forthcoming on the record on his part for the silence for a considerable time, particularly in the situation when the IMC after the supersession was constituted only for hundred and twenty days and prompt action to challenge the same was Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 20 :- expedient; but out of this short period he remained quiet for vital period of three months. Thus not only the rule of acquiescence as mentioned earlier shall be attracted to his case also; rather the principle of laches as has been expounded in the judgment reported as State Bank of Pakistan through Governor and another Vs. Imtiaz Ali Khan and others (2012 SCMR 280) shall also apply; the relevant part of this dictum reads as follows:- “It is settled principle of our jurisprudence as well that delay defeats equity and that equity aids the vigilant and not the indolent. In the case of Jawad Mir Muhammadi v. Haroon Mirza (PLD 2007 SC 472), a full Bench of this Court has held that lathes per se is not a bar to the constitutional jurisdiction and question of delay in fling would have to be examined with reference to the facts of each case; question of delay/lathes in filing constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for delay in filing constitutional petition, the same cannot be overlooked and ignored subject to facts and circumstances of each case. In this very case reference has also been made to words of Lord Camden L.C. from the judgment of Smith v. Clay (1767) 3 Bro. C.C. 639n at 640n wherein it has been observed that “a Court of equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time; nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence, where these are wanting the Court is passive, and does nothing.” Cited judgment also refers to a book titled Snell’s Equity by John Meghee 13th Edition, wherein at page 35 it has been observed that “the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine; where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by this conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these lapse of time and delay are most material.” Furthermore, on account of the delay in filing the petition by Mr. Arshad when his term has almost expired, no other conclusion can be Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 21 :- drawn except that he was pursuing the cause for Mr. Zaka Ashraf, and was a proxy for him. It was never an honest effort to seek the enforcement of any of his right, which even otherwise as mentioned earlier had extinguished with the term of his office as a Member of the Board of Governors coming to an end on 12.5.2014. It may be emphasized that as he was not a member of the superseded Board of Governors after 12.5.2014, therefore, he lost his locus standi to maintain his petition; which can also be termed to have become infructuous when it came up for hearing and decided by the Court on 15.5.2014. At this point it may not be irrelevant to mention about the transposition of Mr. Zaka Ashraf in this petition; he was not transposed by a specific order of the Court; transposing cannot be deemed or assumed granted as a matter of right or course until an order to that effect is passed; transposition was not even legally permissible, because when the application for the transposition was made, on account of the expiry of the term, Mr. Arshad had lost the locus standi and his petition was rendered infructuous; no person should ordinarily be transposed in such infructuous case. As regards the case of Mr. Rafiq Bogio is concerned, Mr. Imtiaz Rasheed Siddiqui, learned ASC has pointed out today that he too was a Member of the Board of Governors who had filed an independent Writ Petition No.2313/2014. We have checked up with the office of the Islamabad High Court this petition was filed on 12.5.2014 and was never fixed for hearing along with the other connected matters and decided accordingly; even otherwise this matter is not before us. Besides, we have been apprised by the Legal Advisor to the PCB Mr. Taffazaul H. Rizvi, ASC that Mr. Bogio was appointed the Member of the Board on the recommendation of Mr. Zaka Ashraf. This petition again thus can be inferred to be proxy for Mr. Zaka Ashraf, who Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 22 :- for the reasons best known to him has always been shy to come in the forefront to challenge his supersession. Besides this petition is also hit by rules of acquiescence, and laches and the rule of acceptance by silence as well. 13. As regards the other respondents are concerned, without going into the question whether a collateral attack could be made by them qua the supersession of the Board, when primarily they were aggrieved of their termination orders. Suffice it to say that these petitions were liable to be dismissed for two simple reasons firstly that their services were not governed by any statutory rules and thus their writ petitions were not competent in terms of the law laid down in the judgment reported Abdul Wahab and others Vs. HBL and others (2013 SCMR 1383), secondly, the employment(s) of the said respondents admittedly was contractual in nature and their services were terminated after due notice as per their contractual terms and conditions of service. And even on this account the writ petitions were incompetent and had to fail. It may be added here, that their termination(s) was made by the competent authority in the Board; for example in the case of Arbab Altaf Hussain, as stated earlier, notice was served upon him and ultimately his service was terminated by Director HR & A, who as per the Board’s non-statutory rules, was the competent (authority) to do so. Besides to their extent the rule of exercise of de facto jurisdiction was attracted even if the supersession of the Board was assumed to be bad in law. So the writ petitions filed by all other respondents, as mentioned earlier, were liable to be dismissed on these scores. 14. For what has been stated above, we by converting these petitions into appeals, allow the same and the impugned judgment of Civil Petitions No.784, 853 to 876 of 2014 & Criminal Original Petitions No.48 & 54 of 2014 -: 23 :- the High Court is set aside. All the writ petitions filed by the respondents (the writ petitioners) shall stand dismissed. However, before parting it may be observed that all the employees of the Board who had challenged their termination orders, but have failed by virtue of this decision may approach the new Board constituted after the elections are held, as envisaged by the new Constitution, within one month by filing representations to the new Management of the Board, and such Board/Management shall finally decide about the fate of their employment; which decision shall be conclusive by all means. Cr.O.Ps.No.48 & 54/2014: 15. In the light of the decision rendered in the main petitions, these criminal original petitions have lost efficacy and are accordingly dismissed. JUDGE JUDGE Lahore, the 21st July, 2014 Not Approved For Reporting Waqas Naseer/*

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Abdul Hameed Dogar Mr. Justice Saiyed Saeed Ashhad Civil Petition No.788 of 2006 M/S Al-Mahmudia (Pvt) Ltd. …Petitioner VERSUS Pakistan through Secretary M/O Housing & Works, Islamabad etc. …Respondents For the petitioner: Mr. Hafiz. S.A. Rehman, Sr. ASC Mr. Mehr Khan Malik, AOR Respondents: N.R. Date of hearing: 14.9.2006 O R D E R Iftikhar Muhammad Chaudhry, CJ.—This petition has been filed against the judgment dated 5.6.2006 passed by Lahore High Court, Rawalpindi Bench. 2. Learned counsel stated that in view of the judgment in the case of Federation of Pakistan through Secretary Education Vs. Pr.Dr. Anwar and two others (2006 SCMR 382) the petitioner is entitled for hearing before the competent authority by way of submitting his reply. In this behalf it may be noted that a larger Bench of this Court earlier delivered a judgment in the case of Federation of Pakistan Vs. Muhammad Tariq Pirzada and two others (1999 SCMR 2744) and settled that hearing before Section Officer is sufficient. Relying upon the same judgment, learned High Court had observed that hearing before Section Officer will meet the requirements of Article 32 Order PO(1) 1983. 2. We are inclined to agree with the judgment delivered by a larger Bench comparing the judgment which has been relied upon by the CP 788 of 2006 2 learned counsel, therefore, the earlier view taken in Tariq Pirzada’s case(ibid) is approved and petition is dismissed holding that the High Court had rightly declined to interfere in the impugned order following the law laid down in the judgment delivered by a larger Bench of this Court. Petition is dismissed and leave declined. Chief Justice Judge Judge Islamabad, the 14th September, 2006 Nisar/* APPROVED FOR REPORTING

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IN THE SUPREME COURT OF PAKISTAN (Appellate/Original Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE MUHAMMAD SAIR ALI MR. JUSTICE GHULAM RABBANI CIVIL PETITION FOR LEAVE TO APPEAL NO. 796 OF 2007 & CMA NO. 4560 & 4561/2009 & CMA 116/2011 [On appeal against the judgment dated 26.06.2007 passed by the High Court of Balochistan in Writ Petition No. 892 of 2006] Maulana Abdul Haq Baloch & 2 others. PETITIONERS VERSUS Government of Balochistan through Secretary Industries & Min Dev. & others. RESPONDENTS CRL. MISC. APPLICATION NO. 8/2011 IN CPLA 796/2007 Ehsanullah Waqas MPA Punjab APPLICANT VERSUS Tethyan Copper Co. & others RESPONDENTS CONSTITUTION PETITION NO. 68 OF 2010 Mr. Muhammad Tariq Asad, ASC PETITIONER VERSUS Federal Government through Federal Secretary, M/o Petroleum & Natural Resources, Islamabad & others. RESPONDENTS CONSTITUTION PETITION NO. 69 OF 2010 & CRIMINAL ORIGINAL PETITION NO. 1 OF 2011 Watan Party & another. PETITIONERS VERSUS Federation of Pakistan RESPONDENT CP.796/2007 etc Order dt. 25.05.2011. 2 CONSTITUTION PETITION NO. 1 OF 2011 Qazi Sirajuddin Sanjrani & another PETITIONERS VERSUS Federal Government through Secretary Cabinet Division, Islamabad & others. RESPONDENTS CONSTITUTITON PETITION NO. 4/2011 Senator Muhammad Azam Khan Swati etc. PETITIONERS VERSUS Federal Government through Secretary M/o Petroleum & Natural Resources, Islamabad, etc. RESPONDENTS HUMAN RIGHTS CASE NO. 53771-P/2010 [Application by Kh. Ahmed Tariq Rahim, ASC] For the petitioners: Mr. Raza Kazim, Sr. ASC (CP 796/2007) Mr. Mahmood A. Sheikh, AOR Petitioner: Mr. Tariq Asad, ASC in person (Const P 68/2010) Petitioners: Barrister Zafarullah Khan, ASC (Const P 69/2010) (in person) For the petitioners: Nemo. (Const P 1/2011) For the petitioners: Mr. Tariq Asad, ASC (Const P 4/2011) Qari Abdul Rashid, ASC Syed Zafar Abbas Naqvi, AOR For the respondents: M/o Petroleum: Mr. Azhar Khan, Director Mr. Abdul Qadir, Director Mr. M. Iqbal, Director Govt. of Balochistan: Mr.Amanullah Kanrani, A.G. (Blo). Mr. Ahmer Bilal Soofi, ASC Mr. M.S. Khattak, AOR Balochistan Development Authority: Hadi Shakeel Ahmed, ASC. CP.796/2007 etc Order dt. 25.05.2011. 3 For respondent No. 6: Nemo. (Const P 68/2010) For respondent No. 7: Raja Muqsit Nawaz Khan, ASC (Const P 1/2011) For respondent No. 4: Mr. Khalid Anwar, Sr. ASC (TCC) in Const P 1/2011 CP 796/2007. For respondent No.4: Fakhruddin G. Ebrahim, Sr. ASC TCC, Islamabad Mr. Mehr Khan Malik, AOR For respondents No.5 & 7: Barrister Sajid Zahid, ASC Antofagasta Plc London & Mr. Arshad Ali Chaudhry, AOR Barrick Gold Corp. Canada For respondent No. 6: Mr. Khalid Anwar, Sr. ASC (Muslim Lakhani) Mr. Mehr Khan Malik, AOR For respondent No.8: Mr. Sikander Bashir Mohmand, ASC Mr. Arshad Ali Chaudhry, AOR BHP Min. Expl. Islamabad For State Bank of Pakistan: Nemo. For the applicant: Malik Shakeelur Rehman, ASC (CMA 3680 & 3687/2010 & Syed Zafar Abbas Naqvi, AOR 151/2011) For the applicant: Mr. M. Ikram Chaudhry, ASC (CMA 215/2011) For the applicant: Nemo. (CMA 324/2011) For the applicant: Mr. Saleem Khan, ASC (CMA 414/2011) Date of hearing: 25.05.2011. .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. CP.796/2007 etc Order dt. 25.05.2011. 4 O R D E R IFTIKHAR MUHAMMAD CHAUHDYR, CJ. – Listed matters are pending adjudication in this Court. The subject matter of all the petitions is the right to the exploration and lease of the copper/gold mines etc in the area of Reko Diq, District Chaghai at Dalbandin in Balochistan Province of Pakistan. The jurisdiction of this Court under Article 185(3) of the Constitution has been invoked in Civil Petition No. 796 of 2007. Other Constitution Petitions and the miscellaneous applications have been filed under Article 184(3), seeking transparency and merit in the award of the mining lease. 2. The uncontroverted facts that emerge from the concise statements, documents and submissions of the parties are that for the purpose of conducting exploration and development of mineral deposits of gold and copper in the agreed Exploration Area, in District Chagai of the Province of Balochistan, Pakistan, Balochistan Development Authority (BDA) on the approval of the Government of Balochistan (GOB), entered into CHAGAI HILLS EXPLORATION JOINT VENTURE AGREEMENT dated 29th July, 1993 (CHEJVA) with BHP MINERALS INTERNATIONAL EXPLORATION INC (BHP); a foreign company. BDA was to provide administrative support, necessary consents, approvals, NOCs, security clearances etc etc and relaxation of certain Rules of the Balochistan Mining Concession Rules, 1970. BHP was to CP.796/2007 etc Order dt. 25.05.2011. 5 undertake the work and entire cost of the exploration and infrastructure etc thereof. The respective Percentage Interests were 25% for BDA and 75% for BHP. The Joint Venture was granted ten Prospecting Licenses (P.Ls) in 1996 for an area of 1000 Sq. Km. BHP carried out reconnaissance and detailed work up to 1999 in these areas and reported large deposits of Copper, Gold etc at Reko-Diq. The Joint Venture thereafter surrendered 8-P.L’s and retained Two P.Ls of Reko-Diq. After the new National Mineral Policy and the enactment of Balochistan Mineral Rules, 2002, a consolidated Exploration License No.EL-5 was granted to the Joint Venture for a defined area of Reko-Diq in 2002 for three years. On two renewals thereof, EL-5 was to remain valid upto 18th February, 2011. 3. During the extended period of EL-5, ADDENDUM NO.1 to the CHEJVA was signed between BDA/GOB and BHP, whereby inter-alia, Government of Balochistan became Joint Venture partner in CHEJVA with BDA as its Agent. ADDENDUM also permitted transfer or assignment of a party’s interests in CHEJWA wholly or partly. Whereon through intermediary corporate instrumentalities, share interest of BHP in CHEJWA was routed and rerouted via Mincor Resources N.L/Tethyan Copper Company Ltd of Australia (TCC) per the OPTION AGREEMENT/ALLIANCE AGREEMENT. And finally under the NOVATION AGREEMENT OF 2006 JVA was novated to CP.796/2007 etc Order dt. 25.05.2011. 6 substitute TCC for BHP as a full party with Deed of Waiver and Consent of GOB for such transfer. BHP was thus replaced by TCC in the Joint Venture which became TCC-BDA/GOB GHAGAI HILLS JOINT VENTURE. The respective Percentage Interests were restated for GOB (25%) and TCC (75%). Antofagasta of Chile and Barrick Gold Corporation of Canada; stated to be amongst the largest companies prospecting for gold and copper in the world, then stepped in and jointly purchased TCC’s entire 75% Percentage Interest in the Joint Venture. Antofagasta and Barrick Gold; on thus acquiring TCC, carried out the drilling and exploration programme at EL-5 area of Reko-Diq at a claimed expense of millions of US $, with no financial cost burden on GOB/BDA. 4. In 2006, C.P.No. 892/06 was filed by Maulana Abdul Haq etc in the Balochistan High Court challenging legality of CHEJVA, relaxation of 1970 Mining Rules by GOB and BHP’s lukewarm exploration activity. The Government of Balochistan denied illegality of CHEJVA and its alleged contrariness to public interest. This Constitutional Petition was dismissed by the High Court of Balochistan through the impugned judgment dated 26.06.2007. The relaxation of 1970 Rules, acts of GOB/BDA and CHEJVA were held to be legal. Hence CPLA No. 796 of 2007 in this Court against the above judgment. CP.796/2007 etc Order dt. 25.05.2011. 7 5. During the pendency of the leave petition, a major development took place. Exploration work including drilling was completed by TCC within the stipulated period. Substantial discoveries of gold and copper etc were made. The license period expired on 18th of February, 2011. TCC submitted to GOB Feasibility Study Report; a study to ascertain the commercial feasibility of the mining of the resource, treatment of ore obtained in mining operation, expected optimum return, life of the mine, mineable reserves and grade and the results of geological and geophysical investigations etc. The Feasibility Study is admittedly under examination of GOB. 6. The above mentioned feasibility report was offered by the former Advocate General i.e. Mr. Salahuddin Mangel to be exclusively shared with this Court though claiming the same to be sensitive, confidential, highly technical and ordinarily beyond the Court’s domain. 7. After the above discovery by TCC, the present litigation attracted general focus and also publicity. Various Petitioners also filed their respective petitions alleging absence of fairness, transparency, and merit in the grant of licence(s) to BHP/TCC and also alleged possible risks to the vital interests of Balochistan and Pakistan in the grant of mining lease to TCC. Before the High Court, GOB had supported the legality of CHEJVA but opted to take a different stand before this Court. On CP.796/2007 etc Order dt. 25.05.2011. 8 the other hand, BHP and TCC, respectively argued to support CHEJVA, relaxation of 1970 Rules and the grant of licences. TCC also asserted its right under CHEJVA and 2002 Rules to be considerated for and be granted the mining lease with or without the joint venture partner. 8. During the hearing of the matter, TCC formally applied to the Government of Balochistan within the visualized period for the grant of the mining lease under 2002 Rules which statedly recognized the licensee’s entitlement to apply for a mining lease on success of the licensee in the exploration,. 9. No order has yet been passed on this application by the Government of Balochistan because of the pendency of the present petitions and the restraining order which had been passed by this Court on 03.02.2011 in the following terms:- “In view of importance of the case, ………………………… we consider it appropriate at this stage to know the reaction of the respondents through their learned Advocates as to whether it would not be appropriate that the Government of Balochistan through its competent authority may postpone its decision of granting mining lease or otherwise to the Companies/claimants of holders of EL-5 to wait for the result/outcome of these proceedings. CP.796/2007 etc Order dt. 25.05.2011. 9 2. Mr. Khalid Anwar, Sr. ASC has stated that as far as the parties interested in obtaining the mining lease are concerned, they have only to submit an application to the Government of Balochistan before 19.02.2011 and then it is for the Government of Balochistan through its competent authority to take the decision to consider the request or whatever position may be, therefore, he and other learned Advocates associated with him, M/S Abdul Hafeez Pirzada, Fakhruddin G. Ibrahim and Barrister Sajid Zahid have no objection if order is passed to the effect that the Government of Balochistan may postpone decision on the application(s) submitted for mining lease till the decision/outcome of the instant proceedings without prejudice to their legal rights. Dr. Salahuddin Mengal, learned Advocate General, Balochistan has stated that the Government of Balochistan has instructed him to make the statement that so far it has not received any application for grant of mining lease from any of the companies. However, it would not dispose of the application, if submitted until the decision of this Court subject to all just exceptions. Similar stand has been taken by Ch. Mazhar Ali, learned Deputy Attorney General, who is representing the Government of Pakistan. 3. …………………………………………………. in view of the statement so made by the learned counsel for the parties, it is declared that no decision shall be taken by the Government of Balochistan in respect of the grant of the mining CP.796/2007 etc Order dt. 25.05.2011. 10 lease on the application submitted by any of the parties without prejudice to their legal rights till the decision of the instant proceedings”. 10. The case was thereafter heard on 15.02.2011, 05.04.2011, 24.04.2011 and 25.05.2011. 11. Feasibility Study having been submitted, TCC is asserting its entitlement to obtain a decision from BOD on its application for the grant of mining lease. The claim has been contested by the petitioners. GOB while persisting with its privilege to the detailed scrutiny of Feasibility Report, reiterates its competence under 2002 Rules to decide upon TCC’s application. We also note that by C.M.A.No. 112 of 2011 Government of Balochistan through Secretary Mines and Minerals Development Department had importantly made a prayer that we would like to reproduce hereunder for GOB’s stand and emphasis therein spelt out:- “Since the feasibility study report has been submitted by respondent No.4 for consideration, the review of which is under process by the respondent No.1, and since the mineral agreement is yet to be signed between respondent No.1 & 4 wherein details and modalities will be decided strictly in accordance with the spirit of B.M.R. 2002 and CP.796/2007 etc Order dt. 25.05.2011. 11 incorporated in the mineral agreement to be executed, therefore the instant petition for leave to appeal filed by the petitioners may kindly be disposed off”. 12. In view of the above and on hearing the learned counsel for the parties at length, we inquired from the learned counsel for the petitioners, the respondents, the interveners, GOB/BDA and the learned Attorney General for Pakistan as to whether the restraining order dated 3rd February, 2011 be vacated. All of them responded affirmatively. 13. We are in agreement with the learned counsel for the parties and are of the opinion that at this stage it will not be proper for us to inquire into the Feasibility Study Report or to rule upon the entitlement of TCC to the mining lease. The reason, is that under the governing law and 2002 Rules, this matter falls exclusively within the domain of the Government of Balochistan and the Government is also seized of the Feasibility Report as well as the application of TCC. All the parties have expressly admitted that the Government of Balochistan being the competent authority in this matter, should in due discharge of its obligation, make a decision on TCC’s application impartially, objectively and in accordance with law and thus accept its legal responsibility thereof. In this view of the matter, it will not be proper for us to CP.796/2007 etc Order dt. 25.05.2011. 12 pre-empt the decision of the Government of Balochistan by entering into the merits of the case at this juncture. 14. As such accepting the consensus of all the learned counsel and for the reasons above recorded. The restraining order dated 03.2.2011 is recalled. The competent authority in the Government of Balochistan shall proceed to expeditiously decide TCC’s application for the grant of mining lease transparently and fairly in accordance with the law and the rules. In so doing the Government of Balochistan shall not be influenced in any manner whatsoever by the pendency of these proceedings or by the orders therein passed by this Court. Upon decision of the matter by the Government of Balochistan, the learned Advocate General of the Province shall inform the Registrar of this Court forthwith. The petitions shall remain pending on the file of this Court until the decision of the application by the competent authority. IFTIKHAR MUHAMMAD CHAUDHRY, CJ MUHAMMAD SAIR ALI, J GHULAM RABBANI, J ISLAMABAD. 25.05.2011. “APPROVED FOR REPORTING”

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Amir Hani Muslim Mr. Justice Ejaz Afzal Khan Mr. Justice Mushir Alam Civil Petition No.80-Q of 2010 Against the judgment dated 14.4.2010 passed by the Baluchistan Service Tribunal Quetta in S.A No. 21 of 2006 Amanulah Petitioner(s) VERSUS Government of Baluchistan & 02 others Respondent(s) For the Petitioner(s): Mr. M. Munir Paracha, ASC For Respondents No.1-2: Mr. Shaiq Baluch, AAG Baluchistan For Respondent No.3: Mr. Hassan Raza Pasha, ASC Date of Hearing: 25.4.2014 ORDER Mushir Alam, J.- Instant Civil Petition for leave to Appeal under Article 212(3) of the Constitution of Pakistan, 1973 arises out of an order dated 14.4.2010 passed by the Baluchistan Service Tribunal, Quetta. 2. Brief facts as may be necessary to appreciate the rival contentions of the parties appear to be that the Respondent No.3 Adam Khan was appointed as Risaldar in Levies on 23.12.1993. Appellant, Amanullah was appointed as Jamadar/Naib Risaldar in Levis on 18.12.1993. From the record it seems that Amanullah was favoured with out of turn promotion as Risaldar on 3.6.1999, which action was successfully challenged in Appeal by one Adil Muhammad who was senior to him consequently, Appellant was reverted to his original post as Naib Risaldar and said Adil Muhammad was promoted vide order in appeal dated 12.5.2003. Record show that the then Chief Minister of Balochistan on 9.8.2005 favoured Amanullah, with two stage out of turn promotion to Risaldar Major (B-14), overlooking ban and non availability of vacancy, beside ignoring seniority criteria as laid down in Section 9 of the Balochistan Civil Servants Act, 1974 and also by waiving Civil Petition No.80-Q of 2010 2 condition of consideration and recommendation of his case by the District Promotion Committee as required under Rule 7 of the Balochistan Civil Service (Appointment, Promotion and Transfer) Rule 1979, in negation of Balochistan Levies (B-1 to B-15) Rules 1990, consequently promotion order dated 25.11.2005 was issued by the Government of Balochistan, the Respondent No.1 herein. 3. The Respondent No.3 herein Adam Khan successfully challenged the above Order dated 25.11.2005 of the Respondent No.1 before the Balochistan Services Tribunal, Quetta. Learned Balochistan Services Tribunal, Quetta, in consideration of provisions contained in the Balochistan Civil Servants Act, 1974, Balochistan Civil Servants (Appointments, Promotion and Transfer) Rules, 1979, Balochistan Levies (B-1 to B-15) Rules 1990, and all other relevant laws/policy as in vogue allowed the appeal through impugned order dated 14.4.2010, relevant part of the impugned order is as follows:- “15. In the instant case, a deviation was made from the rules and the selection was made by the Chief Minister which was arbitrary and without lawful basis. In this regard we are fortified by the Judgment reported in SCMR 1995 P-650, the relevant portion whereof is reproduced here-in- below: “No doubt the competent authority has the discretion but it was not unfettered, while exercising discretion, the authority should not act arbitrarily, unreasonable and in complete disregard of the rules and regulations. The discretion to be exercised has to be judged and considered in the background of the facts and circumstances of each case. In the present case there is a strong background of ignoring for disapproving the appellant with certain proposes.” 16. In view of the above discussion, we are of considered view that the appellant has been granted two steps out of turn promotion illegally for erroneous consideration. We regretfully disapprove such exercise of power by the then Chief Minister of the province. The impugned order dated 25.11.2005 is hereby set-aside being illegal and contrary to law. The respondent is reverted from the rank of Risaldar Major to the rank of Risaldar immediately. The respondent No.1 i.e. Secretary Home and Tribal Affairs is directed to place the case of appellant’s promotion as Risaldar Major before the District Promotion Committee being senior most within a period of two months”. 4. Mr. Muhammad Munir Paracha, learned ASC for the petitioner, contended that the Petitioner was condemned unheard by the Balochistan Service Tribunal, as the Appellant was not served any notice of Appeal, therefore impugned order is liable to be set-aside and the service appeal be remanded for decision afresh after hearing the Appellant. When attention of learned ASC was drawn to the order of the Balochistan Service Tribunal dated 5.06.2008, recording service of notice on the Appellant (page 71 of the Paper Book) and with copy of Notice of Service Appeal showing same address of Civil Petition No.80-Q of 2010 3 the Appellant as shown in the memo of Appeal, it was vainly argued that postman was not examined to prove service. We are afraid such contentions cannot be considered, sanctity is attached to the order of the Service Tribunal holding service good on the Appellant under given facts and circumstances no exception could be taken on this count. 5. It was next contended that in terms of Section 20 of the General Clauses Act 1956 read with other enabling provision of Section 39 (1) of the Government of Balochistan Rules of Business read with Schedule VII and Section 23 of the Balochistan Civil Service Act, 1974, the Chief Minister being the executive head of the Province, had all the authority and discretion to relax the Rules, and no exception to exercise of such authority could be taken. Arguments seemingly persuasive, when examined, is denude of any legal sanctity on more than one counts; firstly in terms of Article 240 read with Article 260 and 2A of the Constitution of Pakistan, 1973; terms and conditions of service of a person in the service of Pakistan and or Province right from very inception of appointment till its termination or retirement including all matters incidental and or falling in between are determined by or under the Act of Parliament or Provincial Assembly, as the case may be. Right to be consider for promotion of an employee is one of the essential term and condition of service. Secondly, section 23 of the Balochistan Civil Servant Act, 1974 does not confer any power on the Government of Balochistan, which could be exercised through the executive authority of the Province, to relax any rules framed under the Act, 1974 governing promotion of a Civil Servant. Even otherwise, Section 23 of the Balochistan Civil Servant Act, 1974 only empowers the Government of Balochistan to, deal with the case of any civil servant in such manner as may appear to it to be just and proper. Even than such discretion is not unfettered but is shackled and controlled by the Proviso to section 23 ibid; which inter-alia provides that “where this Act or any rules is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by the Act or such rule.” Now examining the case in hand, appellant is in the service of Province of Balochistan. His terms and conditions of service are governed by special enactment namely Balochistan Civil Servant Act, 1974 and Balochistan Levies (B-1 to B-15) Rules, 1990. His promotion is regulated and controlled by Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979. In the matter of terms and conditions of services, Rule 7 thereof, mandates that promotion and transfer to the post in basic pay scale 2 to 16 and equivalent are to be made on the recommendation of the appropriate Departmental Promotion Committee and any promotion to higher grade is to be made on the recommendation of Provincial Selection Board. Section 9 of Civil Petition No.80-Q of 2010 4 the Balochistan Civil Servants Act, 1974 mandates promotion against non- selection post on the basis of seniority cum fitness. In instant case it is quite disturbing to note that the then Chief Minister, not only ordered out of turn promotion of the Appellant on purported meritorious service, but also waived off requirement of provisions of Rules 1979, bypassing District Promotion Committee. The act of extending favour and conferring benefit of promotion is not only against the fundamental rights of promotion of his peers on merits but, is also a glaring example of nepotism and undue favour, which act is also opposed to Oath of office of the Chief Minister, whereby he pledged to the people of his province to “discharge my duties, and perform my function, honestly, to the best of my ability, faithfully in accordance with the Constitution of Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty, integrity solidarity, well being and prosperity of Pakistan….” That in all, circumstances, I will do right to all manner of people, according to law, without favour, affection or ill-will” thus favouring the Petitioner with out of turn promotion as Risaldar by passing all those in deserving and waiting for promotion is against all cannon of norms and law, and in abdication of Oath of office thus cannot be sustained. 6. In a very recent case reported as Abdul Malik and others vs. Government of Balochistan through Secretary, Home and Tribal Department and others (2013 PLC (C.S.) 736), learned Division Bench of Balochistan High Court disapproved, for valid reasons, ad-hoc appointment of Risladars in the Provincial Levies Force on the directive of the Chief Minister. In the cited case, the High Court thoroughly examined the authority of the Provincial Government to relax rules. It was held therein Provincial Legislature had not granted the Provincial Government any power to ‘relax’ any rule. No provision existed in the Balochistan Civil Servants (Appointments, Promotion and Transfer) Rules, 2009, which may enable the Provincial Government to do any thing in the purported ‘Relaxation of Rules.’ It was further held that if persons were appointed as Levies Officers on the personal whims of a Minister or on the basis of ‘sifarish’ the fundamental rights of those aspiring to such post were transgressed (Article 18), to be considered equal before the law (Article 25(2) of the Constitution of Pakistan, 1973. The Court not only set aside the ad- hoc appointment of the Risaldar, declaring the same to be void-ab-initio but also directed them to refund all salaries and benefit received by them. In number of cases including Abdul Shakoor and others vs. Azad Government of the State of Jammu and Kashmir through Chief Secretary and others (2004 PLC (C.S.) 208), and in the case of Muhammad Sadiq and another vs. Federal Service Tribunal, Islamabad and others (2003 PLC (C.S.) 1029), this Court Civil Petition No.80-Q of 2010 5 disapproved practice of relaxing Rules by the executive authority to extend favour to dole out favour to blue eyed. 7. Under facts and circumstances of case, no exception to the well considered and reasoned decision dated 12.4.2010 of the Balochistan Service Tribunal could be taken. Leave is declined and petition is dismissed. Judge Judge Judge ISLAMABAD, THE 25th April, 2014 arshed Approved for Reporting Civil Petition No.80-Q of 2010 6

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE YAHYA AFRIDI CIVIL PETITION NO.800-P OF 2019 (Against the order dated 14.11.2019 passed by Peshawar High Court, Peshawar, in W.P.362- P/2019) Government of KPK through Secretary Excise & Taxation Department, Civil Secretariat, Peshawar and others …Petitioner(s) VERSUS Sarfaraz Khan and another …Respondent(s) For the Petitioner(s): Malik Akhtar Hussain, Addl.AG KPK On Court’s Notice: For Respondent-1: Syed Hamad Ali Shah, Legal Officer KP Excise Dept. Mr. Shakil Ahmed, Inspector Motor Registration Authority Sargodha In-person. Date of Hearing: 28.05.2020 O R D E R MUSHIR ALAM, J.— The petitioners, Government of KPK through Secretary Excise & Taxation Department, Civil Secretariat, Peshawar and others, have impugned judgment dated 14.11.2019, passed by learned Division Bench of the Peshawar High Court, Peshawar, in W.P.362-P/2019, whereby the orders passed by the authorities seizing the subject vehicle were set aside. 2. Precise facts giving rise to the present controversy are that the subject vehicle bearing registration No.SGF-2992, Model No.1989, having Chassis No.LN85-0010554, was seized on CP 800-P/19 2 27.01.2017. On forensic examination, it was found “welded and refitted chassis frame”. This action was challenged by the Respondent No.1 before the learned Peshawar High Court and the learned High Court in consideration of the fact that the record has neither been called from the concerned Excise and Taxation Officer Sargodha nor have they directed the petitioner to produce the same before it and such exercise of the authority was not in accordance with law and the impugned action was held to be without lawful authority and jurisdiction and the subject vehicle was ordered to be handed over to the Respondent-1 herein. 3. Notice was issued to the respondent, who claim to be the owner of the subject vehicle as well as excise department Sargodha and the Investigating Officer of Police, Peshawar. 4. Officer concerned from the excise department appeared and produced original registration record of the subject vehicle. From the record, it appears that some alteration has been made in the vehicle and the Respondent claims that he has purchased the vehicle from Muhammad Yaqoob, whose name appears in the record at Page-38 of the Court file. However, the subject vehicle was seized on 27.01.2017 and during its seizure period, its ownership was transferred in the name of Respondent-1 on 04.02.2017. Therefore, the contention of the Respondent that he has purchased the vehicle from Muhammad Yaqoob is not borne out from the record. Even otherwise, under Section 33 of the Provincial Motor Vehicles Ordinance, 1965, applicable to both the Provinces of Khyber Pakhtunkhwa as well as Punjab, reads as follow: CP 800-P/19 3 “33. Alteration in motor vehicle.(1) If a motor vehicle is so altered that the particulars contained in the certificate of registration are no longer accurate, the owner of the vehicle shall within fourteen days of the making of any such alteration, report the alteration to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration of the vehicle to that authority together with the prescribed fee in order that particulars of the alteration may be entered therein Provided that it shall not be necessary to report any change in the unladen weight of the motor vehicle consequent on the addition or removal of fitting or accessories, if such change does not exceed two per cent of weight entered in certificate of registration. (2) A registering authority other than the original registering authority making any such entry shall communicate the details of the entry to the original registering authority. Punjab Amendment In Section 33, in subsection (1), for the words “entered therein” the words “updated in the record and shall issue a new certificate of registration and license number plates, if required” shall be inserted.” 5. In the Province of Punjab, Section 33 of the Ordinance was amended through the Provincial Motor Vehicle (Amendment) Act XLVIII of 2016, which requires that all such additions/alterations shall be updated in the record and shall issue a new certificate of registration and license number plates, if required. Respondent No.1 states Rule 33 (ibid) is applicable when there is a change carried out by replacing the chassis numbers and there are different modes of change and adjustment for the purpose of modification and he has not done any change. It may be observed that Section 33 (ibid) as reproduced above does not distinguish alteration in the motor vehicles in any manner whatsoever. Any alteration effected in the vehicle is required to be reported within 14 days to the authority in whose jurisdiction the CP 800-P/19 4 owner resides and the authority is required to issue a certificate of registration of the subject vehicle to the concerned authority where such alteration has to be entered into. In a case reported as Sultan Muhammad versus Collector Customs and another (2015 PTD 570) the question as to welding and refilled old chassis plate of the same vehicle amounts to altering of the original chassis number came up for consideration. Learned Bench after considering large number of cases in para-7 at page-586, opined (vi) & (viii) and at page-588 held: (vi) “Tempering” of chassis number of the vehicle, include any alteration of the original chassis number of the vehicle, whether manual or otherwise OR cutting a piece of the frame and re-welding another piece thereon OR chassis number filled with welding material and then restamped. (vii) …………. (viii) Tempering of chassis number as a result of an accident of the vehicle could only be a valid ground, if the same was reported to and confirmed by the Motor Vehicle Authorities under Section 33 of the Motor Vehicle Ordinance, 1965. …………………………….. Presenting documentation, relating to the said “tampered” vehicle from the Motor Vehicle Authority, without specific approval for the alteration in the chassis of engine number, as envisaged under section 33 of the Motor Vehicle Ordinance, 1965 (“Ordinance”) would be of no legal avail. Moreover, allowing a vehicle, having “tampered” chassis number, even with registration book from the Motor Vehicle Authority, would surely offend and abuse the provisions of the Act/Ordinance and the Policy of the Federal Government reflected in CP 800-P/19 5 Circular No.10(1)AS/2004 dated 11-12-2007 read with S.R.O. No.568(1)/2008, dated 11-6-2008.” 6. No such exercise was undertaken. Respondent concedes that such alteration was not carried out by him but by the person from whom he has purchased the vehicle. The liability and responsibility vest on the person making such alteration in any manner whatsoever. If the Respondent has purchased the same without taking due care and complying with the requirements of law, he cannot claim to be a bona fide purchaser. Needless to say that he may, if so advised, claim damages from the person from whom he purchased the subject vehicle. 7. In view of what has been discussed above, the impugned judgment cannot be sustained. Accordingly, this petition is converted into appeal and allowed and the impugned judgment is set aside. Judge Judge ISLAMABAD 11th May, 2020 Mudassar/ “Approved for Reporting” Judge

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S IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE SAJJAD ALL SHAH MR. JUSTICE YAHYA AFRIDI 2-L AND 814-L OF 201 (Against the consolidated order dated 20.2.20 19 passed by the Lahore High Court in WP No. 246503, 254424- 25, 254408, 254428, 254415, 254418, 254421 & t' 254411 of 2018) Haji Muhammad Latif Versus Muhammad Sharif & another Muhammad Aslam & another Shamim Akhtar & another Muhammad Riaz & another Zahida Bibi & another Ohulam Mustafa & another Maqbool Kamboh & another Rehmat Au @ Kala Changar etc. Ghulam Qadir & another Petitioner (In all cases) Respondents (In CP 805-LI 19) Respondents (In CP 806-LI 19) Respondents (in CP 807-LII9) Respondents (in CP 808-L119) Respondents (in C]' 809-LI1 9) Respondents (in CP 810-LI19) Respondents (In CP 811-LI 19) Respondents (In a' 812-L/19) Respondents (In a' 814-LI1 9) For the Petitioner(s) Mr. Nadeem ud Din Malik, ASC For the Respondent(1) Pirzada Mamoon Rashid, ASC (VL-Lhr). Date of Hearing 09.03.202 1 ORDER Saijad Ali Shah, J.- The petitioners seek leave of this Court to file appeals against a Common order of the Lahore High Court I dismissing all the petitions by holding the impugned order of the Rent Controller as interim whereby the Rent Controller though declined to grant leave to defend the ejectment petitions but directed the petitioner to adduce evidence and granted respondents' right to cross examine. 2 Briefly, the petitioner filed nine ejectment petitions against his different tenants inter alia, on the ground of default, the respondents having been served, filed applications seeking leave to defend the ejectment proceedings. The learned Rent Controller, after hearing the parties, through a common order declined to grant leave to - CPs8O5-Lof2Ol9etc 2 the tenants to defend the ejectment petitions but fixed all the case for production of supporting evidence of the land-lord and awarded the respondents/ tenants a right to cross examine the land lord and his witnesses. This order of the Rent Controller was challenged by the petitioner/land-lord before the Lahore High Court by filing writ petitions asserting the order to be in violation of law, however, the petitions were dismissed again through a common impugned order by holding the order of the Rent Controller as interim and, therefore, not assailable. 3. Learned ASC for the petitioner while inviting our attention to sub-Section 6 of Section 22 of the Punjab Rented Premises Act 2009 (hereinafter referred to as "the Act, 2009"), contends that the law provides that in cases where leave to contest is refused or the respondent has failed to file application for leave to contest within the stipulated time, the Rent Tribunal shall pass the final order. Further submits that the Rent Controller after declining the leave to contest could not have directed the petitioner/land-lord to produce supporting evidence and to grant opportunity to the respondent-tenants to cross examine the witnesses, so produced. Per counsel, the law clearly provides that once the Rent Tribunal refuses to grant leave, it shall pass final orders, therefore, the order of the Rent Controller directing the production of supporting evidence and granting opportunity to the tenant to cross examine, was in violation of Section 22(6) of the Act, 2009 and the High Court, instead of taking note of such illegality dismissed the petition by holding that the order was interim and the law did not provide a remedy against the interim order. 4. On the other hand, learned counsel for the respondents vehemently contended that the subject order was in the nature of an CPs8O5-Lof2Ol9etc 3 - interim order and Section 28(2) of the Act, 2009 clearly bars appeal against the interlocutory order of the Rent Tribunal, to support his contention reliance was placed on the judgment of this Court in the case of President All Pakistan Women Association Peshawar Cantt. vs. Muhammad AkbarAwan (2020 SCMR 260). 5. We have heard the learned counsel for the respective le parties, perused the record and the relevant provisions of the Act, 2009. 6. There is no cavil to the proposition that sub-Section 2 of Section 28 of the Act, 2009 bars filing of appeal against an interim order and there are also no two views that in cases where a statute specifically bars the remedy of appeal against an interim order then such statutory command ordinarily should not be circumvented by allowing parties to invoke writ jurisdiction. However, in the instant case what escaped from the notice of the High Court was as to whether the Rent Controller after declining leave to the tenant to contest the ejectment application could direct the land-lord to adduce evidence and allow the tenant to cross examine the land-lord specially when the provision of sub-Section 6 of Section 22 of the Act, 2009 specifically provide that in case where the leave to contest is refused or the respondent has failed to file application for leave to contest within the stipulated time, the rent Tribunal shall pass the final order. This being a mandatory provision with the consequences spelled leaves no option for the Rent Controller but to pass final order. However, it is to be noted that the language employed in Section 22(6) by using the words inal order" instead of "ejectment order", leaves room for the Rent Controller to apply his judicial mind before passing a final order as CPs 805-L of 2019 etc 4 required under the circumstances of each case may it be ejectment of a tenant or otherwise. 7. It appears that the Rent Controller being oblivious of such command proceeded with the matter as if exercising ordinary civil jurisdiction ordained under the Code of Civil Procedure where even after debarring the defendant to file written statement by declaring him -/ ex parte, the plaintiff can be asked to adduce evidence and the defendant can be provided with opportunity to cross examine. It is to be noted that the powers conferred on the Rent Controller under sub- Section 6 of Section 22 of the Act, 2009 are more akin to the provisions of Order XXXVII Rule 2 CPC which provide that on default of defendant in obtaining leave to defend, the plaintiff shall be entitled to a decree. Likewise, in cases where a tenant is declined leave to contest, the Rent Controller is left with no option but to pass a final order. lk ccte 8. In the circumstances, These petitions / converted into appeal 4-1 1 ' ale allowed. The Rent Controller is directed to decide the ejectment petitions through a final order in terms of the provisions of Section 22(6) of the Act, 2009. Islamabad 09.03.2021 A. Rehman Nit Approved For Reporting Judge d1'ge

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mushir Alam Mr. Justice Sajjad Ali Shah Civil Petition No.80 of 2018 Against the judgment dated 13.11.2017 passed High Court of Baluchistan, Quetta in Civil Revision No.109 of 2015. Malik Khan Muhammad Tareen Petitioner(s) VERSUS M/s Nasir & Brother Coal Company thr. its proprietor & others Respondent(s) For the Petitioner(s) : Mr.Sardar Muhammad Aslam, ASC For the Respondent : Mr.Tariq Mehmood, ASC Date of Hearing : 03.10.2018 JUDGMENT Mushir Alam, J-. Petitioner, has impugned the judgment dated 13.11.2017 whereby the learned Bench of High Court of Baluchistan, at Quetta set aside the concurrent orders dated 25.03.2015 and dated 30.4.2015 passed by the learned Civil Judge (Judicial Magistrate-IX), Quetta and the learned District Judge, Quetta, respectively whereby Petitioner’s/ Defendant No.3 objections as to the territorial jurisdiction of the Civil Judge at Quetta as sustained were set aside and the case was directed to proceed by the learned trail Court, in accordance with law. 2. In brief facts appears to be that the Respondent No.1/Plaintiff claimed to be in permissive possession of the mining lease, of the area situated in Duki, Loralai as detailed in the Plaint. Pursuant to various assignment and agreements some shown to have been executed at, Duki, Killa Saifullah, Loralai and Quetta. Plaintiff Civil Petition No.80 of 2018. 2 filed a suit No.59/2012 on 14.11.2012 before learned Civil Judge-IX at Quetta, seeking declaration and directions against the official respondents stationed at Quetta for assignment and transfer of rights in respect of mining lease, restraining orders against the defendants including officials not to carry out joint survey of the subject mining leases, not to carry out mining activity, suspension of letter dated 2.11.2012 issued by the official respondents stationed at Quetta notifying on 13.11.2012 as date of joint survey. 3. It appears that on an application under Order XXXIX, Rule 1 & 2, CPC ad-interim injunction staying joint survey was granted on 24.11.2012, against which Petitioner/ Defendant No.3 filed Civil Appeal No.53 of 2012, same was dismissed on 13.12.2012, which was challenged in Civil Revision No.376 of 2012, before the High Court, wherein by consent of the contesting parties, joint survey was carried out. Parties accepted the Commission’s survey report, which culminated into a compromise order dated 11.01.2013, parties were directed to proceed with the suit before the trial Court. However, instead of proceeding before the learned trial Court at Quetta, parties again engaged into number of contempt proceedings, review of the consent order, and at least four Constitution Petitions being C.P. No.61 of 2013, C.P. No.483 of 2013, C.P. No.638 of 2013 and C.P. No.178 of 2013, filed in the High Court and one Criminal Petition No.68 of 2013 two Civil Petitions being No.1110 of 2013 and No.162 of 2014 in this Court, including remand order in Civil Revision by this Court to the High Court. 4. It appears that when parties were left with no ammunition in their arsenal to continue their battle before the High Court and Civil Petition No.80 of 2018. 3 Supreme Court, locked their horns before the learned trial Court. From record, of the learned trial Court it appears that the official respondents were proceeded ex-parte. Written statement was ultimately filed by the Petitioner/private defendant No.3 on 12.03.2014, wherein issue of territorial jurisdiction of the learned trial Court at Quetta, was raised and decided as preliminary issue. 5. Learned Civil Judge, at Quetta, in consideration of fact that mining lease is situated in Duki, vide order dated 25.3.2015 returned the plaint to be presented before the Court having territorial jurisdiction, which order was maintained, as noted above by the learned District Judge, Quetta on 30.4.2015. 6. Through impugned judgment, learned Bench of the High Court, taking stock of the entire facts and circumstances of the case concluded that “the matter in issue pertained to an area of some mining lease and rights thereon, thus it did not directly relate to right and interest in the immoveable property, rather covered by the later part, thus suit could be filed at the place where the cause of action whole or in part arisen” and in paragraph 11 of the impugned judgment, Learned Bench relying on section 21 CPC and on the case reported as Faqir Muhammad versus Pakistan through Secretary, Ministry of Interior and Kashmir Affairs Division, Islamabad (2000 SCMR 1312) observed that the objection as to territorial jurisdiction was not timely pressed, and such conduct of the Defendant No.3 amounts to waiver. Consequently, orders dated 25.3.2015 and 30.4.2015 passed by the learned Civil Judge, Quetta and District Judge, Quetta were set aside. Learned trial Court was directed to proceed with the matter in accordance with law. Civil Petition No.80 of 2018. 4 7. Contentions of Sardar Muhammad Aslam, learned senior counsel for the Petitioner, is indeed correct that the objections as to territorial jurisdiction cannot be raised before the appellate and or revisional Court. According to him, objections as to territorial jurisdictions were raised before the Court of first instance, that is trial Court as required under section 21 CPC and before striking out issues. Therefore, impugned judgment, having overlooked such aspect of the matter, cannot be sustained. He conceded that after filing of the suits on 14.11.2012 parties engaged in legal battle before High Court and Supreme Court. Written statement raising objections as to territorial jurisdiction, was filed on 12.2.2014. It is also conceded that joint survey of mining lease was carried by consent of the parties and based on such survey and demarcation, consent order was passed in Civil Revision No.376 of 2012 on 13.01.2013, “and as regards the suit the parties” were directed to “proceed the same before the trial Court” One of the prayers in the suit as regards survey of the area of “mining lease”, by the official defendants, at Quetta, by consent of the parties, was set at rest. 8. In contrast to explicit conferment of jurisdiction on Criminal Courts (See Section 28 read with second schedule of the Code of Criminal Procedure, 1898) to try various offences under Pakistan Penal Code. Jurisdiction of the Civil Courts is not as explicitly defined in CPC. Section 9 CPC confers plenary jurisdiction, subject to part I of the Code, on Civil Courts to try “all cases of civil nature”, except suits of which cognizance is either expressly or impliedly barred. Jurisdiction of Civil Courts to try civil cases may be classified into a) territorial jurisdiction, b) pecuniary jurisdiction and c) jurisdiction over subject matter. Jurisdiction over subject matter of suit of civil nature is most Civil Petition No.80 of 2018. 5 pivotal and determinative as regard assumption and exercise of jurisdiction by any civil Court. It is through special enactments and statute, like for instance Provincial and Islamabad Capital Territory and Cantonment Rent Restriction Laws, Federal and Provincial Service Laws, Excise and Taxation Laws, Customs Acts, Banking Laws, Company Laws etc.; subject matter jurisdiction is sliced and or carved out of the otherwise plenary jurisdictions possessed by ordinary Civil Court and is conferred on special Courts, Tribunals and forum through special statute some which are noted herein (see Section 9 CPC). 9. In order to regulate place of suing and institution of civil proceedings, same is to be instituted in the Civil Court of lowest grade competent to try it (section 15 CPC) and in the Court where the defendant or one of the defendants resides or work for gain, or where the cause of action occurs, or where it relates to right to or interest in immovable property, is required to be instituted within the local limits of whose jurisdiction the immoveable property is situated. It could also be the Court in whose jurisdiction action or inaction of any State or public authority/ functionary is involved. (see section 15 to 20 CPC). 10. In instant case controversy as to mining lease, is involved. In a case from Australian jurisdiction, Queensland Supreme in a case reported as Sojitz Coal Resources Pty Ltd v. Commissioner of State Revenue [2015] QSC 9 held “that mining leases did not constitute an ‘estate or interest in land’ according to ordinary concepts” Position in Pakistan is no different, mining lease means rights and interest in mines and minerals in and on the surface of earth or land, mines and minerals are regarded as moveable property. Rights and interest in mines and mineral on or in the surface of land is Civil Petition No.80 of 2018. 6 separate and distinct from “rights to or interest in immoveable property” within the contemplation of clause (d) of section 16 CPC, mines and minerals are moveable property and in terms of Article 172 and 173 of the Constitution of Pakistan read with section 49 of the Land Revenue Act, 1967 and Provincial Mining Rules (in instant case Baluchistan Mineral Rules, 2002) all mines and minerals shall be and shall always be deemed to have been the property of Government, irrespective of fact that title to surface land vests in an individual, Forest Department or any other authority or even the Government itself. It is the relevant Government that exercise powers necessary for the proper enjoyment of its rights thereto, which is regulated under the Mineral Development (Control) Act, 1948 read with respective Provincial Mining Concession Rules (see Water and Power Development Authority and another versus Assistant Director Mines and Minerals, Attock and others (PLD 2012 Lahore 83), Messrs National Highway Authority through Duly Authorized Director (Legal versus The Chief Secretary, Government of the Punjab, Lahore and 5 others (PLD 2017 Lahore 390) and Fateh-ul-Mulk Ali Nasir and 4 others versus Government of Khyber Pakhtunkhwa through Secretary Mines and Minerals and 6 others (2015 CLC 1762 [Peshawar]). 11. In instant case as elaborately discussed by the learned Bench of the High Court, and rightly held that no rights and interest in the immoveable property is involved, and since the objections as to territorial jurisdiction was not raised promptly before the very civil Court seized of the matter as required under section 21 CPC, and no prejudice is shown to have been caused to the defendant, therefore Court of Civil Judge, Quetta has jurisdiction. Civil Petition No.80 of 2018. 7 12. Section 21 CPC, makes exception as to general rules contained in sections 15 to 20 CPC in respect of place of suing as regards territorial and pecuniary jurisdiction, as opposed to subject matter jurisdiction or very competence of the Court to take cognizance is concerned, unless it is shown that the objections as to territorial jurisdiction was raised in the Court of first instance at the earliest possible opportunity and there has been a consequent failure of justice on such count, jurisdiction of Civil Court, unless expressly or impliedly barred, would be competent to try and adjudicate the civil claim. Section 21 CPC reads as follows: “21. Objections to jurisdiction. No objection as to the place suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.” 13. On the bare reading of section 21 ibid; it is manifestly clear that the objections as to territorial jurisdiction unless raised before the Court of first instance “at the earliest possible opportunity” are not even considered by the appellate or Revisional Court. The Appellate or Revisional Court would only consider such objections provided all three conditions as set down in section 21 CPC are met viz firstly, objection as to territorial jurisdiction was raised in the Court of first instance, secondly such objection is raised at the earliest opportunity and in case the issues are settled, before settlement of issue and most importantly and thirdly, there has been consequent failure of justice. In the case of Pathumma v. Kuntalan Kutty (AIR 1981 Supreme Court 1683), it was held that, it is necessary that the above mentioned three conditions must co-exist. In the case of Faqir Muhammad (Supra) it was held that this section provides statutory recognition that an objection about territorial jurisdiction can Civil Petition No.80 of 2018. 8 be waived and objections as to competence of the Court cannot be ignored. 14. In the instant case, it is matter of record that the Petitioner instead of raising objections as to territorial jurisdiction of the Court, engaged into long drawn battel in High Court and Supreme Court. He was ultimately driven to trial Court to contest the suit on merits. Written statement was filed by the petitioner/defendant with considerable delay on 12.3.2014, raising issue of territorial jurisdiction. Issue of territorial jurisdiction though raised before settlement of issues but, not at the earliest opportunity. Learned counsel when confronted as to what prejudice has been caused or will be caused to him, Sardar Aslam, learned ASC, candidly conceded that no prejudice or failure of justice has been caused or will be caused to the Petitioner if suit is tried by the learned Civil Judge, Quetta. Since we have noted that the learned Civil Judge at Quetta, seized of the matter is otherwise competent to decide the controversy subject matter of the suit. 15. In this view of the matter, we do not see any merit in the instant petition. Therefore, this petition is dismissed and leave to appeal is refused. JUDGE Islamabad, the 3rd of Oct., 2018 Syed Farhan Ali Approved for Reporting JUDGE

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE UMAR ATA BANDIAL CIVIL PETITIONS NO. 816-L AND 817-L OF 2009 (On appeal from the judgment dated 31.03.2009 of the Lahore High Court, Lahore passed in FAO No. 143 of 2007&C.R.1058/07). Najm Koreshi Petitioner Versus Chase Manhattan Bank now Muslim Commercial Limited, Lahore and others Respondents For the petitioner Rai Ahmed Nawaz Kharal, ASC a/w petitioner For the respondent 1 Mr. Munawar-us-Salam, ASC Date of hearing: 28.04.2015 JUDGMENT UMAR ATA BANDIAL, J.— The petitioner is the decree- holder under a judgment and decree dated 17.01.1995 passed by the learned Civil Court for the recovery of £152,542.97 from the respondent No.1 judgment-debtor bank with costs and “periodically prevalent interest as prayed for till the realization of the decretal amount” (“Decree”). The Decree further allows the judgment debtor bank to “hold” in Pounds Sterling the equivalent of Rs.3,709,505.50 till decision of its claim in respect of a finance facility allegedly provided by the judgment debtor bank to the petitioner decree holder’s business company, respondent No.2. The present dispute between the parties arising from execution proceedings of the Decree is about the method of calculating interest under the Decree: C.P. NO. 816-L OF 2009 etc. 2 Whether it is charged on the principal amount decreed or is charged on the aggregate of the said amount and the amount of interest accrued thereon. 2. By RFA No. 290 of 1992 the judgment-debtor bank appealed the said judgment and decree before the learned High Court. It furnished a bank guarantee equivalent to the principal amount under the Decree, that is, £152,542.97 as security for interim relief restraining execution of the Decree taken out by the petitioner vide his application filed on 12.09.1995. The RFA No.290 of 1992 was dismissed by the High Court on 10.11.1998 whereupon the available bank guarantee was encashed and credited in full to the account of the petitioner on 23.12.1998. Thereafter the pending execution application was activated by the petitioner for realization of the remaining amount due under the Decree from the judgment debtor bank. 3. By judgment dated 31.03.2009 (“Impugned Judgment”) the learned High Court disposed of the petitioner’s Civil Revision No.1058 of 2007 and FAO No.143 of 2007 and the judgment debtor bank’s Civil Revision No.812/2007 each filed against the order dated 21.04.2007 passed by the learned Executing Court. The Impugned Judgment affirmed the order under challenge and held that the petitioner decree holder was entitled to receive interest on the principal decretal amount of £152,542.97 from the date of filing of suit on 26.02.1992 up to the date of encashment of the bank guarantee on 23.12.1998. The outstanding amount of interest for the said period was calculated to be £138,644.06 vide order dated 16.07.2001 by the learned Executing Court. This figure was endorsed by the Executing Court’s aforesaid order dated 21.04.2007 that is affirmed by the learned High Court. Nevertheless, C.P. NO. 816-L OF 2009 etc. 3 the Impugned Judgment has remanded re-calculation of the accrued interest amount under the Decree to the learned Executing Court. 4. The petitioner is aggrieved by the Impugned Judgment of the learned High Court because it denies him payment of interest on the aggregate of the principal amount decreed together with interest accrued on the that amount till realization of the said aggregate as allegedly ordered in the Decree. It is also objected that both the Impugned Judgment and the order of the learned Executing Court dated 21.04.2007 upheld by the said judgment, disregard the fresh calculation of the accrued interest made by a second local commission appointed by a consent order dated 13.03.2007 passed by the learned Executing Court. That calculation is made on compound basis with effect from the date of alleged default by the judgment debtor bank and opines that default by the judgment debtor bank under the Decree is still continuing. 5. To explain his contentions, the learned counsel for the petitioner has read from the decree dated 17.01.1995 wherein the following relief is granted: “It is ordered that suit of the plaintiff succeeds and therefore a decree for recovery of £152,542.97 (£75,000/- plus £77,542.97) is hereby granted, in terms of foreign currency keeping in view the dictum laid down in case Terni SPA Vs. PECO cited in 1992 SCMR 2238, in favour of the plaintiff and against the defendant No.1 Chase Manhattan Bank (now Muslim Commercial Bank Limited) with costs and periodically prevalent interest as prayed for till realization of the decretal amount. However, the defendant No.1 Bank shall hold an amount in Pounds Sterling equivalent to Rs.3,709,505.50 alleged finance facility given to defendant No.2 company till the decision thereabout by the proper forum.” C.P. NO. 816-L OF 2009 etc. 4 The learned counsel for the petitioner has argued that the order to pay “periodically prevalent interest as prayed for till the realization of the decretal amount” contemplates two parts of the decretal amount. Firstly, the principal amount adjudged and secondly, the amount of accrued interest chargeable till realization of the decretal amount. The obligation to pay interest under the Decree continues until the aggregate of the said two parts of the decretal amount are discharged fully by the judgment debtor bank. By this treatment interest under the Decree accrues on a compound basis and not at a simple rate. The accumulation of interest on compound basis is allegedly consistent with the term contained in the Decree that interest should accrue “as prayed for in the suit”. The prayer in the plaint seeks payment of interest at the agreed rate. According to the conditions of the term deposit slips issued to the petitioner by the judgment debtor bank, the agreed rate of interest is the average of the rates given on the petitioner’s two deposits made respectively at 13.125% and 14.125% per annum calculated quarterly on a compound basis. Accordingly, the learned High Court and the learned Executing Court have fallen into error and thereby denied lawful fruits of the Decree to the petitioner. 6. The learned counsel for the respondent judgment debtor-bank has defended the Impugned Judgment. He opposed the claimed entitlement of the petitioner to receive interest payments for the period after payment of the principal amount adjudged, that is, £152,542.97 on 23.12.1998. He argues that the principal amount adjudged under the Decree is the decretal amount. Payment of interest under the Decree is directed until realization of the decretal amount and not on the unpaid interest that has accrued on the said amount during the intervening period. The petitioner’s entitlement C.P. NO. 816-L OF 2009 etc. 5 to receive interest is for the period commencing the date of filing of the suit on 26.02.1992 until the payment of the decretal amount on 23.12.1998. The interest amount accruing for that period was determined by the learned Executing Court on 16.07.2001 at £138,644.60. After deducting there-from £39,463/- being the foreign currency equivalent of the sum to be withheld under the Decree, the learned Executing Court concluded in the said order dated 16.07.2001 that the interest amount payable to the petitioner for the afore-noted period is £99,181.06. This determination was challenged by the petitioner before the learned High Court through Civil Revision No. 1925 of 2001. However, on 22.03.2006 that petition was withdrawn whereupon the said determination of outstanding interest liability made in Executing Court’s order dated 16.07.2001 attained finality. The adjudicated interest amount of £99,181.06 was ultimately paid under order of the Executing Court to the petitioner on 16.02.2010 out of attached funds of the judgment debtor bank lying with the State Bank of Pakistan. Therefore, the judgment debtor bank has fully discharged the principal amount adjudged and the accrued interest amount payable under the Decree. The Decree has accordingly been fully satisfied by the judgment debtor bank. The petitioner is actually claiming interest upon interest to be paid on a compound rate by the judgment debtor bank which claim has no warrant under the Decree. 7. After hearing the submissions by the learned counsel for the parties, the controversy in relation to the satisfaction of the decree dated 17.01.1995 simplifies to the issue whether the obligation of the judgment debtor bank to pay further interest under the Decree accrues upon the outstanding principal amount C.P. NO. 816-L OF 2009 etc. 6 adjudged or upon the aggregate of the said amount with the amount of unpaid interest accumulated on the said principal amount. The corollary of the said issue is whether further interest payable under the Decree is to be calculated at a compound rate of interest or a simple rate of interest. 8. It may also be noted at the outset that the charging and payment of interest, inter alia, under decrees passed by the Courts of law was declared contrary to the injunctions of Islam and therefore illegal and void by the judgment dated 23.12.1999 passed by the learned Shariat Appellate Bench of this Court in M. Aslam Khaki vs. Muhammad Hashim (PLD 2000 SC 225) affirming the judgment dated 14.11.1991 given by the learned Federal Shariat Court in Mahmood-ur-Rahman Faisal vs. Secretary Ministry of Law (PLD 1992 FSC 1). Both judgments were set aside by the learned Shariat Review Bench of this Court in United Bank Ltd. vs. Farooq Brothers (PLD 2002 SC 800). The matters in issue in the proceedings include, inter alia, the identification of the characteristics of financial transactions that bear the taint of Riba. This controversy has by the said review judgment of this Court been remitted to the learned Federal Shariat Court for decision afresh. No decision has yet been rendered in the remanded matter by the learned Federal Shariat Court. Consequently, judicial decrees ordering payment of interest are presently enforceable. 9. It is settled law under the provisions of the Code of Civil Procedure, 1908 (“CPC”) that an Executing Court has jurisdiction to implement a decree under execution strictly in accordance with its terms. Reference is made to Naseem Akhtar vs. Shalimar General Insurance Company (1994 SCMR 22) and Ahmed Yar Khan Jogezai vs. Province of Balochistan (2002 SCMR 122). In C.P. NO. 816-L OF 2009 etc. 7 the present case, the Decree under execution dated 17.01.1995 neither grants interest for the period prior to filing of the suit nor awards interest on the aggregate of the principal amount of the Decree and interest pendente lite. Interest is awarded by the Decree till realization of the “decretal amount”. It is an appealing argument by the petitioner that the payment of further interest until “realization” of the “decretal amount” is an obligation under the Decree; therefore the amount of accumulated further interest forms a part of the decretal amount. Consequently, payment made on 23.12.1998 by the judgment debtor bank in an amount equal to the principal adjudged amount satisfies only a part of the Decree. The bank’s liability to pay interest under the Decree continues and further interest adds up on the unpaid amount of interest that was outstanding when the principal adjudged amount was discharged on 23.12.1998. The rival argument on behalf of the judgment debtor bank is that the petitioner’s contention is entirely presumptuous and finds no support from the terms of the Decree. 10. To evaluate the respective contentions of the learned counsel for the parties set out above it would be useful to first consider the provisions of Section 34 CPC that are relevant to the present dispute. These are reproduced below: “34. Interest—(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit. C.P. NO. 816-L OF 2009 etc. 8 (2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.” 11. It is clear from the foregoing provisions of Section 34 CPC that the Court passing a decree has discretion to order interest at such rates as it deems reasonable accruing for different periods either on principal or aggregate amounts. The said legal provision expressly contemplates the award of interest pendente lite on the principal sum adjudged and also post decretal further interest on the aggregate of the said principal sum together with interest accrued thereon till the date of payment of the aggregate amount. As the award of interest on a decree is discretionary therefore, the terms on which it is ordered must be spelled out clearly in the contents of the decree. Otherwise, silence of the decree in the matter of further interest is to be deemed as refusal under Section 34(2) CPC. The rate at which interest is ordered to accrue and whether such interest is to be calculated at a simple rate or a compound rate are also discretionary elements that ought to be specified in a decree. 12. It is a matter of record that the petitioner decree holder withdrew his challenge filed before the learned High Court against the order of the learned Executing Court dated 16.07.2001. This order fixes the outstanding interest amount accruing under the Decree as on 23.12.1998 when an amount of £152,542.97 equivalent to the principal sum adjudged was paid to the petitioner. Accordingly, the said determination of interest attained finality against the decree holder. The judgment debtor bank, however, filed C.P. NO. 816-L OF 2009 etc. 9 a review application under Section 114 read with Order XLVII of the CPC against the said order dated 16.07.2001 before the learned Executing Court. This application was a non-starter on both its maintainability and merits and shall be dealt with later. 13. The order dated 16.07.2001 of the learned Executing Court treats the principal amount adjudged by the Decree to be the decretal amount. It determines £99,181.06 as the amount of interest that is outstanding under the decree having been calculated from the date of filing of the suit until the date of realization of the principal amount adjudged. The equivalent of £99,181.06 was ultimately paid to the petitioner through the process of the learned Executing Court on 16.02.2010. Whether the interest amount of £99,181.06 calculated until the date of payment of the principal amount adjudged on 23.12.1998, is also subject to accrual of further interest until its payment on 16.02.2010 depends on the terms of the Decree. The Decree is silent about the accrual of interest on interest or on any aggregate amount. Clearly the Decree does not order the charging of compound interest. On the other hand, it orders for interest to be charged and paid until realization of the decretal amount but the meaning of the term “decretal amount” is not given. 14. For interest under the Decree to be applied and calculated, it is necessary that the base figure, that is, “decretal amount”, is an ascertained or a readily ascertainable amount. The view that the expression “decretal amount” should be an ascertained sum finds support from the terms of Order XXI Rule 23- A CPC wherein for raising an objection to a decree, the judgment debtor must deposit or secure the “decretal amount” with the C.P. NO. 816-L OF 2009 etc. 10 executing court. Likewise in Muhammad Sadiq vs. WAPDA (PLD 2003 SC 290) it has been held that deposit in Court under Order XXI Rule 1 CPC of money payable under a decree entitles a judgment debtor to the relief of suspension in the accrual of further interest. For a deposit to be made to avail the said relief it is necessary that the requisite amount is ascertained or readily ascertainable. Such a sum is the principal amount adjudged and the decretal amount. In the present case also such sum is the decretal amount upon which interest under the Decree is to accrue. 15. It cannot be disputed that the payment of interest on the decretal amount is also an obligation of the judgment debtor bank under the Decree. This obligation continues until the decretal amount is paid in full. On that reasoning unpaid interest accruing until payment of the principal amount of the decree should add on to the remaining sum of the principal amount adjudged and become a part of the balance decretal amount that is subject to interest. However, as noted above, there is no order in the Decree for payment of interest on the unpaid amount of accrued interest. Interest pendente lite and further interest are both discretionary reliefs granted under Section 34 CPC. Unless expressly ordered in a decree such interest accrues on principal amount adjudged and not on the aggregate of that amount with accumulated interest. The net effect in the present case is that accrual of interest occurs at simple rate rather than compound rate. This principle of law stands endorsed in M.Y Malik & Co. vs. Splendours International (1997 SCMR 309). 16. Delay in discharging the decretal obligation to pay interest does not carry any apparent cost for the judgment debtor bank under the Decree. Possibly on that perception the judgment C.P. NO. 816-L OF 2009 etc. 11 debtor bank after payment of the principal amount adjudged on 23.12.1998 took its sweet time to pay the amount of interest accrued up to that date. The said accrued amount of £99,181.06 was paid to the petitioner on 16.02.2010, almost 9 ½ years later. Delay in the discharge of the interest liability under the Decree as accrued on 23.12.1998 attracts a principle of law that went un- noticed by learned High Court. This is the principle of appropriation of payments towards the discharge of moneys due under a decree that orders payment of principal amount adjudged, interest and costs. The rule on the appropriation of payments for the adjustment of a debt carrying interest was stated by the Privy Council in Meka Venkatadri vs. Raja Parthasarathy (AIR 1922 PC 233). It was held therein as follows: “The question then remains as to how, apart from any specific appropriation, these sums ought to be dealt with. There is a debt due that carries interest. There are moneys that are received without a definite appropriation on the one side or on the other, and the rule which is well-established in ordinary cases is that in those circumstances the money is first applied in payment of interest and then when that is satisfied in payment of the capital.” That said rule has also been cited with the approval in Rai Bahadur Seth Nemichand vs. Seth Radha Kishen (AIR 1922 PC 26). More recently it has been followed by the Indian Supreme Court in M/s. I.C.D.S. Ltd. vs. Smithaben H. Patel (AIR 1999 SC 1036). It is explained that: “14. In view of what has been noticed hereinabove, we hold that the general rule of appropriation of payments towards a decretal amount is that such an amount is to be adjusted firstly strictly in accordance with the directions contained in the decree and in the absence of such direction, adjustment, be made firstly in payment of interest and costs and thereafter in payment of the C.P. NO. 816-L OF 2009 etc. 12 principal amount. Such a principle is, however, subject to one exception, i.e. that the parties may agree to the adjustment of the payment in any other manner despite the decree. As and when such an agreement is pleaded, the onus of proving is always upon the person pleading the agreement contrary to the general rule or the terms of the decree schedule. The provisions of Sections 59 to 61 of the Contract Act are applicable in cases where a debtor owes several distinct debts to one person and do not deal with cases in which the principal and interest are due on a single debt.” 17. In the present case the Decree dated 17.01.1995 does not fix the manner in which payments are to be appropriated under the three heads of liability ordered by it, namely principal sum adjudged, accrued interest thereon and costs of the suit. Applying the above noted principle of appropriation of payments the initial payment of £152,542.97 made by the judgment debtor bank on 23.12.1998 is first to be adjusted against accrued interest amount of £99,181.06 and then costs of Rs.70,223/- leaving an amount of roughly £53,000/- for adjustment against the decretal amount, that is the principal sum adjudged. After appropriating the payment made by the judgment debtor bank in the above mentioned order, an amount exceeding £100,000/- out of the decretal amount remains outstanding for payment on 23.12.1998. That amount accrues interest at the rate applied by the order of the learned Executing Court dated 16.07.2001. The second payment of £99,181.06 made by the judgment debtor bank on 16.02.2010 is again subject to appropriation under the principle cited above. As there remained outstanding a part of the decretal amount after appropriation of payment made on 23.12.1998 therefore such outstanding amount incurs interest until 16.02.2010 when the second payment was made by the judgment debtor bank. Subject to C.P. NO. 816-L OF 2009 etc. 13 the calculation and adjustment of accrued interest amount until 16.02.2010 the satisfaction of the decree is to be obtained strictly in accordance with the principle of appropriation of payments that is discussed above. This is a task to be accomplished by the learned Executing Court. 18. During the course of hearing, the learned counsel for the petitioner has forcefully stressed restoration of the order by the learned Executing Court dated 13.03.2007. This order accepted the review application filed by the judgment debtor bank against the order dated 16.07.2001 solely by acting on the consent of the petitioner decree holder to the appointment of another local commission for making a fresh calculation of interest accrued on the decretal amount. No grounds are discussed nor reasons given to justify review of the order dated 16.07.2001. Equally, the binding effect of the order dated 16.07.2001 on the petitioner decree holder following the withdrawal of his Civil Revision No. 1925 of 2001 against the said order stands overlooked by the learned Executing Court. On 21.04.2007, the said learned Court perused the report filed by the new local commission appointed on 13.03.2007. This report recommended £557,910.31 as accrued interest under the decree until 23.12.1998. By order dated 21.04.2007 learned Executing Court rejected the fresh calculation of interest for repeating in entirety the decree holder’s version of the interest account submitted in the learned Executing Court. It was also observed that the said report had been prepared without associating the judgment debtor bank. The said order concludes that the local commissioner’s report is one sided and that the interest calculation made by the learned Executing Court in its order dated 16.07.2001 is fair and correct. It is clear that the order dated 13.03.2007 by the C.P. NO. 816-L OF 2009 etc. 14 learned Executing Court is invalid for its several defects, including the failure to establish the grounds of maintainability of a review application against the order dated 16.07.2001 and the absence of reasons on the merits to justify review. Indeed consent of parties alone cannot reopen closed proceedings nor satisfy legal conditions predicating the exercise of jurisdiction by a Court of law. Accordingly, the order dated 13.03.2007 by the learned Executing Court was rightly disregarded by the same Court in order dated 21.04.2007. 19. For the foregoing reasons, these petitions are converted into appeals and partially allowed. The impugned judgment dated 31.03.2009 of the learned High Court is set aside. However, the remand order made therein to the learned Executing Court is reaffirmed for undertaking afresh the calculation of liability of the judgment debtor bank and the realization of dues under the Decree in accordance with the principles set out above. No order as to costs. Judge Judge Judge Announced in open Court on_05.06.2015 at Islamabad. Judge APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE UMAR ATA BANDIAL CIVIL PETITIONS NO. 816-L AND 817-L OF 2009 (On appeal from the judgment dated 31.03.2009 of the Lahore High Court, Lahore passed in FAO No. 143 of 2007&C.R.1058/07). Najm Koreshi Petitioner Versus Chase Manhattan Bank now Muslim Commercial Limited, Lahore and others Respondents For the petitioner Rai Ahmed Nawaz Kharal, ASC a/w petitioner For the respondent 1 Mr. Munawar-us-Salam, ASC Date of hearing: 28.04.2015 JUDGMENT UMAR ATA BANDIAL, J.— The petitioner is the decree- holder under a judgment and decree dated 17.01.1995 passed by the learned Civil Court for the recovery of £152,542.97 from the respondent No.1 judgment-debtor bank with costs and “periodically prevalent interest as prayed for till the realization of the decretal amount” (“Decree”). The Decree further allows the judgment debtor bank to “hold” in Pounds Sterling the equivalent of Rs.3,709,505.50 till decision of its claim in respect of a finance facility allegedly provided by the judgment debtor bank to the petitioner decree holder’s business company, respondent No.2. The present dispute between the parties arising from execution proceedings of the Decree is about the method of calculating interest under the Decree: C.P. NO. 816-L OF 2009 etc. 2 Whether it is charged on the principal amount decreed or is charged on the aggregate of the said amount and the amount of interest accrued thereon. 2. By RFA No. 290 of 1992 the judgment-debtor bank appealed the said judgment and decree before the learned High Court. It furnished a bank guarantee equivalent to the principal amount under the Decree, that is, £152,542.97 as security for interim relief restraining execution of the Decree taken out by the petitioner vide his application filed on 12.09.1995. The RFA No.290 of 1992 was dismissed by the High Court on 10.11.1998 whereupon the available bank guarantee was encashed and credited in full to the account of the petitioner on 23.12.1998. Thereafter the pending execution application was activated by the petitioner for realization of the remaining amount due under the Decree from the judgment debtor bank. 3. By judgment dated 31.03.2009 (“Impugned Judgment”) the learned High Court disposed of the petitioner’s Civil Revision No.1058 of 2007 and FAO No.143 of 2007 and the judgment debtor bank’s Civil Revision No.812/2007 each filed against the order dated 21.04.2007 passed by the learned Executing Court. The Impugned Judgment affirmed the order under challenge and held that the petitioner decree holder was entitled to receive interest on the principal decretal amount of £152,542.97 from the date of filing of suit on 26.02.1992 up to the date of encashment of the bank guarantee on 23.12.1998. The outstanding amount of interest for the said period was calculated to be £138,644.06 vide order dated 16.07.2001 by the learned Executing Court. This figure was endorsed by the Executing Court’s aforesaid order dated 21.04.2007 that is affirmed by the learned High Court. Nevertheless, C.P. NO. 816-L OF 2009 etc. 3 the Impugned Judgment has remanded re-calculation of the accrued interest amount under the Decree to the learned Executing Court. 4. The petitioner is aggrieved by the Impugned Judgment of the learned High Court because it denies him payment of interest on the aggregate of the principal amount decreed together with interest accrued on the that amount till realization of the said aggregate as allegedly ordered in the Decree. It is also objected that both the Impugned Judgment and the order of the learned Executing Court dated 21.04.2007 upheld by the said judgment, disregard the fresh calculation of the accrued interest made by a second local commission appointed by a consent order dated 13.03.2007 passed by the learned Executing Court. That calculation is made on compound basis with effect from the date of alleged default by the judgment debtor bank and opines that default by the judgment debtor bank under the Decree is still continuing. 5. To explain his contentions, the learned counsel for the petitioner has read from the decree dated 17.01.1995 wherein the following relief is granted: “It is ordered that suit of the plaintiff succeeds and therefore a decree for recovery of £152,542.97 (£75,000/- plus £77,542.97) is hereby granted, in terms of foreign currency keeping in view the dictum laid down in case Terni SPA Vs. PECO cited in 1992 SCMR 2238, in favour of the plaintiff and against the defendant No.1 Chase Manhattan Bank (now Muslim Commercial Bank Limited) with costs and periodically prevalent interest as prayed for till realization of the decretal amount. However, the defendant No.1 Bank shall hold an amount in Pounds Sterling equivalent to Rs.3,709,505.50 alleged finance facility given to defendant No.2 company till the decision thereabout by the proper forum.” C.P. NO. 816-L OF 2009 etc. 4 The learned counsel for the petitioner has argued that the order to pay “periodically prevalent interest as prayed for till the realization of the decretal amount” contemplates two parts of the decretal amount. Firstly, the principal amount adjudged and secondly, the amount of accrued interest chargeable till realization of the decretal amount. The obligation to pay interest under the Decree continues until the aggregate of the said two parts of the decretal amount are discharged fully by the judgment debtor bank. By this treatment interest under the Decree accrues on a compound basis and not at a simple rate. The accumulation of interest on compound basis is allegedly consistent with the term contained in the Decree that interest should accrue “as prayed for in the suit”. The prayer in the plaint seeks payment of interest at the agreed rate. According to the conditions of the term deposit slips issued to the petitioner by the judgment debtor bank, the agreed rate of interest is the average of the rates given on the petitioner’s two deposits made respectively at 13.125% and 14.125% per annum calculated quarterly on a compound basis. Accordingly, the learned High Court and the learned Executing Court have fallen into error and thereby denied lawful fruits of the Decree to the petitioner. 6. The learned counsel for the respondent judgment debtor-bank has defended the Impugned Judgment. He opposed the claimed entitlement of the petitioner to receive interest payments for the period after payment of the principal amount adjudged, that is, £152,542.97 on 23.12.1998. He argues that the principal amount adjudged under the Decree is the decretal amount. Payment of interest under the Decree is directed until realization of the decretal amount and not on the unpaid interest that has accrued on the said amount during the intervening period. The petitioner’s entitlement C.P. NO. 816-L OF 2009 etc. 5 to receive interest is for the period commencing the date of filing of the suit on 26.02.1992 until the payment of the decretal amount on 23.12.1998. The interest amount accruing for that period was determined by the learned Executing Court on 16.07.2001 at £138,644.60. After deducting there-from £39,463/- being the foreign currency equivalent of the sum to be withheld under the Decree, the learned Executing Court concluded in the said order dated 16.07.2001 that the interest amount payable to the petitioner for the afore-noted period is £99,181.06. This determination was challenged by the petitioner before the learned High Court through Civil Revision No. 1925 of 2001. However, on 22.03.2006 that petition was withdrawn whereupon the said determination of outstanding interest liability made in Executing Court’s order dated 16.07.2001 attained finality. The adjudicated interest amount of £99,181.06 was ultimately paid under order of the Executing Court to the petitioner on 16.02.2010 out of attached funds of the judgment debtor bank lying with the State Bank of Pakistan. Therefore, the judgment debtor bank has fully discharged the principal amount adjudged and the accrued interest amount payable under the Decree. The Decree has accordingly been fully satisfied by the judgment debtor bank. The petitioner is actually claiming interest upon interest to be paid on a compound rate by the judgment debtor bank which claim has no warrant under the Decree. 7. After hearing the submissions by the learned counsel for the parties, the controversy in relation to the satisfaction of the decree dated 17.01.1995 simplifies to the issue whether the obligation of the judgment debtor bank to pay further interest under the Decree accrues upon the outstanding principal amount C.P. NO. 816-L OF 2009 etc. 6 adjudged or upon the aggregate of the said amount with the amount of unpaid interest accumulated on the said principal amount. The corollary of the said issue is whether further interest payable under the Decree is to be calculated at a compound rate of interest or a simple rate of interest. 8. It may also be noted at the outset that the charging and payment of interest, inter alia, under decrees passed by the Courts of law was declared contrary to the injunctions of Islam and therefore illegal and void by the judgment dated 23.12.1999 passed by the learned Shariat Appellate Bench of this Court in M. Aslam Khaki vs. Muhammad Hashim (PLD 2000 SC 225) affirming the judgment dated 14.11.1991 given by the learned Federal Shariat Court in Mahmood-ur-Rahman Faisal vs. Secretary Ministry of Law (PLD 1992 FSC 1). Both judgments were set aside by the learned Shariat Review Bench of this Court in United Bank Ltd. vs. Farooq Brothers (PLD 2002 SC 800). The matters in issue in the proceedings include, inter alia, the identification of the characteristics of financial transactions that bear the taint of Riba. This controversy has by the said review judgment of this Court been remitted to the learned Federal Shariat Court for decision afresh. No decision has yet been rendered in the remanded matter by the learned Federal Shariat Court. Consequently, judicial decrees ordering payment of interest are presently enforceable. 9. It is settled law under the provisions of the Code of Civil Procedure, 1908 (“CPC”) that an Executing Court has jurisdiction to implement a decree under execution strictly in accordance with its terms. Reference is made to Naseem Akhtar vs. Shalimar General Insurance Company (1994 SCMR 22) and Ahmed Yar Khan Jogezai vs. Province of Balochistan (2002 SCMR 122). In C.P. NO. 816-L OF 2009 etc. 7 the present case, the Decree under execution dated 17.01.1995 neither grants interest for the period prior to filing of the suit nor awards interest on the aggregate of the principal amount of the Decree and interest pendente lite. Interest is awarded by the Decree till realization of the “decretal amount”. It is an appealing argument by the petitioner that the payment of further interest until “realization” of the “decretal amount” is an obligation under the Decree; therefore the amount of accumulated further interest forms a part of the decretal amount. Consequently, payment made on 23.12.1998 by the judgment debtor bank in an amount equal to the principal adjudged amount satisfies only a part of the Decree. The bank’s liability to pay interest under the Decree continues and further interest adds up on the unpaid amount of interest that was outstanding when the principal adjudged amount was discharged on 23.12.1998. The rival argument on behalf of the judgment debtor bank is that the petitioner’s contention is entirely presumptuous and finds no support from the terms of the Decree. 10. To evaluate the respective contentions of the learned counsel for the parties set out above it would be useful to first consider the provisions of Section 34 CPC that are relevant to the present dispute. These are reproduced below: “34. Interest—(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit. C.P. NO. 816-L OF 2009 etc. 8 (2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.” 11. It is clear from the foregoing provisions of Section 34 CPC that the Court passing a decree has discretion to order interest at such rates as it deems reasonable accruing for different periods either on principal or aggregate amounts. The said legal provision expressly contemplates the award of interest pendente lite on the principal sum adjudged and also post decretal further interest on the aggregate of the said principal sum together with interest accrued thereon till the date of payment of the aggregate amount. As the award of interest on a decree is discretionary therefore, the terms on which it is ordered must be spelled out clearly in the contents of the decree. Otherwise, silence of the decree in the matter of further interest is to be deemed as refusal under Section 34(2) CPC. The rate at which interest is ordered to accrue and whether such interest is to be calculated at a simple rate or a compound rate are also discretionary elements that ought to be specified in a decree. 12. It is a matter of record that the petitioner decree holder withdrew his challenge filed before the learned High Court against the order of the learned Executing Court dated 16.07.2001. This order fixes the outstanding interest amount accruing under the Decree as on 23.12.1998 when an amount of £152,542.97 equivalent to the principal sum adjudged was paid to the petitioner. Accordingly, the said determination of interest attained finality against the decree holder. The judgment debtor bank, however, filed C.P. NO. 816-L OF 2009 etc. 9 a review application under Section 114 read with Order XLVII of the CPC against the said order dated 16.07.2001 before the learned Executing Court. This application was a non-starter on both its maintainability and merits and shall be dealt with later. 13. The order dated 16.07.2001 of the learned Executing Court treats the principal amount adjudged by the Decree to be the decretal amount. It determines £99,181.06 as the amount of interest that is outstanding under the decree having been calculated from the date of filing of the suit until the date of realization of the principal amount adjudged. The equivalent of £99,181.06 was ultimately paid to the petitioner through the process of the learned Executing Court on 16.02.2010. Whether the interest amount of £99,181.06 calculated until the date of payment of the principal amount adjudged on 23.12.1998, is also subject to accrual of further interest until its payment on 16.02.2010 depends on the terms of the Decree. The Decree is silent about the accrual of interest on interest or on any aggregate amount. Clearly the Decree does not order the charging of compound interest. On the other hand, it orders for interest to be charged and paid until realization of the decretal amount but the meaning of the term “decretal amount” is not given. 14. For interest under the Decree to be applied and calculated, it is necessary that the base figure, that is, “decretal amount”, is an ascertained or a readily ascertainable amount. The view that the expression “decretal amount” should be an ascertained sum finds support from the terms of Order XXI Rule 23- A CPC wherein for raising an objection to a decree, the judgment debtor must deposit or secure the “decretal amount” with the C.P. NO. 816-L OF 2009 etc. 10 executing court. Likewise in Muhammad Sadiq vs. WAPDA (PLD 2003 SC 290) it has been held that deposit in Court under Order XXI Rule 1 CPC of money payable under a decree entitles a judgment debtor to the relief of suspension in the accrual of further interest. For a deposit to be made to avail the said relief it is necessary that the requisite amount is ascertained or readily ascertainable. Such a sum is the principal amount adjudged and the decretal amount. In the present case also such sum is the decretal amount upon which interest under the Decree is to accrue. 15. It cannot be disputed that the payment of interest on the decretal amount is also an obligation of the judgment debtor bank under the Decree. This obligation continues until the decretal amount is paid in full. On that reasoning unpaid interest accruing until payment of the principal amount of the decree should add on to the remaining sum of the principal amount adjudged and become a part of the balance decretal amount that is subject to interest. However, as noted above, there is no order in the Decree for payment of interest on the unpaid amount of accrued interest. Interest pendente lite and further interest are both discretionary reliefs granted under Section 34 CPC. Unless expressly ordered in a decree such interest accrues on principal amount adjudged and not on the aggregate of that amount with accumulated interest. The net effect in the present case is that accrual of interest occurs at simple rate rather than compound rate. This principle of law stands endorsed in M.Y Malik & Co. vs. Splendours International (1997 SCMR 309). 16. Delay in discharging the decretal obligation to pay interest does not carry any apparent cost for the judgment debtor bank under the Decree. Possibly on that perception the judgment C.P. NO. 816-L OF 2009 etc. 11 debtor bank after payment of the principal amount adjudged on 23.12.1998 took its sweet time to pay the amount of interest accrued up to that date. The said accrued amount of £99,181.06 was paid to the petitioner on 16.02.2010, almost 9 ½ years later. Delay in the discharge of the interest liability under the Decree as accrued on 23.12.1998 attracts a principle of law that went un- noticed by learned High Court. This is the principle of appropriation of payments towards the discharge of moneys due under a decree that orders payment of principal amount adjudged, interest and costs. The rule on the appropriation of payments for the adjustment of a debt carrying interest was stated by the Privy Council in Meka Venkatadri vs. Raja Parthasarathy (AIR 1922 PC 233). It was held therein as follows: “The question then remains as to how, apart from any specific appropriation, these sums ought to be dealt with. There is a debt due that carries interest. There are moneys that are received without a definite appropriation on the one side or on the other, and the rule which is well-established in ordinary cases is that in those circumstances the money is first applied in payment of interest and then when that is satisfied in payment of the capital.” That said rule has also been cited with the approval in Rai Bahadur Seth Nemichand vs. Seth Radha Kishen (AIR 1922 PC 26). More recently it has been followed by the Indian Supreme Court in M/s. I.C.D.S. Ltd. vs. Smithaben H. Patel (AIR 1999 SC 1036). It is explained that: “14. In view of what has been noticed hereinabove, we hold that the general rule of appropriation of payments towards a decretal amount is that such an amount is to be adjusted firstly strictly in accordance with the directions contained in the decree and in the absence of such direction, adjustment, be made firstly in payment of interest and costs and thereafter in payment of the C.P. NO. 816-L OF 2009 etc. 12 principal amount. Such a principle is, however, subject to one exception, i.e. that the parties may agree to the adjustment of the payment in any other manner despite the decree. As and when such an agreement is pleaded, the onus of proving is always upon the person pleading the agreement contrary to the general rule or the terms of the decree schedule. The provisions of Sections 59 to 61 of the Contract Act are applicable in cases where a debtor owes several distinct debts to one person and do not deal with cases in which the principal and interest are due on a single debt.” 17. In the present case the Decree dated 17.01.1995 does not fix the manner in which payments are to be appropriated under the three heads of liability ordered by it, namely principal sum adjudged, accrued interest thereon and costs of the suit. Applying the above noted principle of appropriation of payments the initial payment of £152,542.97 made by the judgment debtor bank on 23.12.1998 is first to be adjusted against accrued interest amount of £99,181.06 and then costs of Rs.70,223/- leaving an amount of roughly £53,000/- for adjustment against the decretal amount, that is the principal sum adjudged. After appropriating the payment made by the judgment debtor bank in the above mentioned order, an amount exceeding £100,000/- out of the decretal amount remains outstanding for payment on 23.12.1998. That amount accrues interest at the rate applied by the order of the learned Executing Court dated 16.07.2001. The second payment of £99,181.06 made by the judgment debtor bank on 16.02.2010 is again subject to appropriation under the principle cited above. As there remained outstanding a part of the decretal amount after appropriation of payment made on 23.12.1998 therefore such outstanding amount incurs interest until 16.02.2010 when the second payment was made by the judgment debtor bank. Subject to C.P. NO. 816-L OF 2009 etc. 13 the calculation and adjustment of accrued interest amount until 16.02.2010 the satisfaction of the decree is to be obtained strictly in accordance with the principle of appropriation of payments that is discussed above. This is a task to be accomplished by the learned Executing Court. 18. During the course of hearing, the learned counsel for the petitioner has forcefully stressed restoration of the order by the learned Executing Court dated 13.03.2007. This order accepted the review application filed by the judgment debtor bank against the order dated 16.07.2001 solely by acting on the consent of the petitioner decree holder to the appointment of another local commission for making a fresh calculation of interest accrued on the decretal amount. No grounds are discussed nor reasons given to justify review of the order dated 16.07.2001. Equally, the binding effect of the order dated 16.07.2001 on the petitioner decree holder following the withdrawal of his Civil Revision No. 1925 of 2001 against the said order stands overlooked by the learned Executing Court. On 21.04.2007, the said learned Court perused the report filed by the new local commission appointed on 13.03.2007. This report recommended £557,910.31 as accrued interest under the decree until 23.12.1998. By order dated 21.04.2007 learned Executing Court rejected the fresh calculation of interest for repeating in entirety the decree holder’s version of the interest account submitted in the learned Executing Court. It was also observed that the said report had been prepared without associating the judgment debtor bank. The said order concludes that the local commissioner’s report is one sided and that the interest calculation made by the learned Executing Court in its order dated 16.07.2001 is fair and correct. It is clear that the order dated 13.03.2007 by the C.P. NO. 816-L OF 2009 etc. 14 learned Executing Court is invalid for its several defects, including the failure to establish the grounds of maintainability of a review application against the order dated 16.07.2001 and the absence of reasons on the merits to justify review. Indeed consent of parties alone cannot reopen closed proceedings nor satisfy legal conditions predicating the exercise of jurisdiction by a Court of law. Accordingly, the order dated 13.03.2007 by the learned Executing Court was rightly disregarded by the same Court in order dated 21.04.2007. 19. For the foregoing reasons, these petitions are converted into appeals and partially allowed. The impugned judgment dated 31.03.2009 of the learned High Court is set aside. However, the remand order made therein to the learned Executing Court is reaffirmed for undertaking afresh the calculation of liability of the judgment debtor bank and the realization of dues under the Decree in accordance with the principles set out above. No order as to costs. Judge Judge Judge Announced in open Court on_05.06.2015 at Islamabad. Judge APPROVED FOR REPORTING.

{'id': 'C.P.L.A.816_2009.pdf', 'url': ''}

{'id': 'C.P.L.A.816_2009.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAT-IAR ALl AKBAR NAQVI CIVIL PETITION NO-820 OF 2019 (Against the judgment dated 2502.2019 of the Peshawar High Court, Peshawar passed in Civil Revision No.592-P12018) Sf0, PESCO Daudzai Sub-Division Ring Road, Peshawar etc. Petitioner(s) Versus Wadan Sher Respondent(s) For the Petitioner(S) For the Respondent(s) Date of Hearing: Mr. Mad Jan, ASC (through video link from Peshawar) Not represented (Ex-parte) 25.08.2022 ORDER IJAZ UL AHSAN, J: The Petitioners through this Petition have challenged a judgment of the Peshawar High Court, Peshawar dated 25.01.2018 passed in Civil Revision No. 592-P/2018. 2. The brief facts giving rise to this Its are that the Respondent filed a suit for declaration to the effect that a bill sent by the Petitioners for the month of August 2012 for Rs. 240,217/- was incorrect. The suit was decreed vide judgment and decree dated 24.11.2014. Dissatisfied, the Petitioners I CIVIL PETITION NO.820 OF 2019 -: 2 filed an appeal which was dismissed vide judgment dated 10.07.2018. Aggrieved, the Petitioners filed a Civil Revision which met the same fate and was dismissed in lirnine vide order dated 25.01.2019, The Petitioners have now approached this Court and are seeking leave to appeal. 3. The learned ASC appearing on behalf of the Petitioners has argued that the learned High Court erred in law in holding that the Petitioner was required to get authorization to file the Civil Revision from PESCO for the reason that the Petitioner No. 01 was sued in his personal capacity and was therefore, not representing PESCO but was defending himself as a separate legal person. The learned ASC has further argued that the question of law relevant in this case has already been decided by this Court to the effect that where an official has been sued in his personal capacity, there is no requirement of a Board resolution of the company of which he is an official. He points out that the petitioners are SDO PESCO, XEN PESCO and R.O. Office. None of whom is the company of which they are employees and as such in order to contest the suit, no resolution of the Board of the company was required. 4. Despite service, no one appeared on behalf of the Respondent. He was accordingly placed ex-parte. CIVIL PETITION No.820 OF 2019 -: 3 5. We have heard the learned Counsel for the parties and perused the record. The basic question which needs to be answered is whether a board resolution permitting the Petitioner to file a civil revision petition was required in order for the Petitioners to appear before the lower fora. The answer to this question is in the negative. It is noteworthy that the Petitioner was sued in his personal capacity and was not representing PESCO. The plaint of the Respondent nowhere mentions that PESCO in its capacity as a public limited company was sued. The Respondent consciously chose to nominate the Appellants as defendants in the suit, in their respective personal capacities. This can be seen from the title of the plaint, which finds specific mention of the Appellants. The fact remains that from the contents of the plaint, it is evidence that the grievance and cause of action of the Respondent was against the Company and not against the Petitioners. As such the framing of the suit was less than perfect to say the least. This material aspect was ignored by the lower fora including the High Court. 6. If the Petitioners were appearing as persons nominated by and defending/ representing the Company, they may have arguably required a board resolution. However, the record clearly shows that the Petitioners appeared before the lower fora in their respective personal capacities and not in the capacities of PESCO's representatives. As such, the learned CIVIL PETITION NO.820 OF 2019 . -: 4 High Court erred in law as well as in fact to hold that the Petitioners lacked authority to appear and required a board resolution from PESCO. 7. It is pertinent to mention here that a Company has a separate and distinct legal identity. When a Company is sued or is initiating legal proceedings, there must be proper authorization which is ordinarily provided in the Memorandum and Articles of Association or a Resolution of the Board of Directors of a Company. To the contrary, if a member/shareholder/director/official of a Company is sued in his personal capacity, then, the need for a Board Resolution authorizing such person does not arise. This is because, the Company is itself a separate legal entity whereas, its members/ officials/ shareholders /directors, in their personal capacity, have a separate legal status. Reliance in this respect is placed on the case reported as Uzma Construction Co. v. Navid H. Malik (2015 SCMR 642). This interpretation is in line with Order XXIX of the Code of Civil Procedure, 1908 which reads as follows: - "1. In suits by or against a corporation, any pleading rnau be signed and verified on behalf of the corporation b y the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. 2. Subject to any statutory provision regulating service of process, where the suit is against a corporation the summons may be sewed - a) on the secretary, or on any director, or other principal officer of the corporation, or b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no clvi PETnION NO. 820 OF 2019 -: 5 registered office then at the place where the corporation carries on business. 3. The Court may, at any stage of the suit, require the personal appearance of the secretary or of any director, or other principal officer of the corporation who may be able to answer material questions relating to the suit." (Underlining is ours) 8. Order XXIX ibid applies when a suit is initiated against or on behalf of a corporation. In that instance, a Board Resolution is important for the reason that the relief being sought is against the corporation as a whole, which is separate from its directors/shareholders/members! officials. It has been settled through various judgments that even if a Board Resolution is not provided, the same is not an incurable defect on the basis of which a suit can be dismissed. In the present case, PESCO has not been sued. Rather, the Petitioners have been sued in their personal capacities. The written statement filed before the trial Court shows that the same has been filed by the Petitioners for themselves and not on behalf of the Company. As such, the argument that the Petitioner lacked authority is repelled since authority from the Company was not required in the instant matter. Reliance in this regard is placed on the case reported as Chief Executive, PESCO Department, Government of Khuber Pakhtunkhwa. Peshawar ii. Afnan Khan (2021 SCMR 21001 in which this Court held as follows: - "6. As regards the question of filing of resolution, we note that the very civil revision was not filed by the Company rather it was filed by the Chairman, WAPDA CIVIL PETITION NO.820 OF 2019 -: 6 and Chief Executive, PESCO and these are the two authorities who were also irnpleaded by the respondent as defendants in the suit. Once the respondent himself has chosen to make a specific designation in the organization/ company as party to the suit and not the organization/ company, the objection with regard to filing of the resolution by the Company could not be justifiably raised." 9. The learned High Court has held that the Petitioner required authorization to defend the suit. However, as already held above, since the Petitioners have been sued in their personal capacities, therefore, the learned High Court's conclusion to the effect that authorization was required is untenable. The Respondent chose to implead the Petitioners by mentioning their specific designations, thereby, referring to them in their personal capacities. This issue is particularly important since it determines the nature of the suit. If the suit was filed against PESCO, then, the applicable law and rules would operate differently. However, since the suit was filed against individuals in their personal capacities, the law would take a different course altogether. 10. The lower fora, as a matter of abundant caution, could have satisfied themselves by seeking production of Articles of Association of the Company if the suit was filed by PESCO in its capacity as a Public Limited Company or, if the suit was filed against PESCO in the said capacity. However, since the suit has been filed against its officials in their personal capacities, such scrutiny was neither required nor necessary for adjudication of the present Us. It has nowhere CIVIL PETITION NO.820 OF 2019 -: 7 been argued that someone else from within the Company was competent to defend the suit. Rather, a generic stance has been taken to the effect that a Board Resolution was necessary for the Appellants to defend the suit so that it could be ascertained that they were empowered by PESCO to do so. We cannot agree with this conclusion by the lower fora simply because the Appellants have nowhere taken any stance on behalf of the Company or defended the Company. Rather, the Appellants have defended themselves in their individual capacities. As such, they were not required to produce a Board Resolution when defending themselves in their personal capacity. 11. Even otherwise, this Court in its pronouncements such as Rahat and Company p. Trading Corporation of Pakistan Statutory Corporation 12020 CLD 872 Supreme Court) has held that even in the absence of a Board Resolution, pleadings can, either expressly or impliedly, be subsequently ratified. The Court can, therefore, come to the conclusion that the Corporation had ratified the act of signing the pleadings by its Officer(s). As such, it is discernable from the said pronouncement of this Court that the absence of a Board Resolution is not an incurable defect which would ipso facto render a plaint/suit defective. Rather, it is a curable defect arid, in certain instances, is not even necessary if CML PETITION NO820 OF 2019 -: 8 :- subsequently, the plaint/suit is ratified by a person competent and empowered to do so. 12. The High Court has proceeded on incorrect premises and misapplied the law to the facts and circumstances of the case which warrants interference of this Court. Accordingly, the judgment of the High Court is held to be legally unsustainable. 13. For the reasons recorded above, this petition is converted into an appeal and allowed. The impugned judgment of the Peshawar High Court dated 25.01.20 18 is set aside. Islamabad, the 25th ugust, 2022 Ø,P61PPrOVCCI Frtin Haris Ishtiaci/*

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL CIVIL PETITION NO.826 OF 2016 (On appeal from the judgment dated 01.02.2016 passed by the Islamabad High Court, Islamabad in ICA No.249 of 2015 Asjad Javed @ Javed Akhtar …Petitioner VERSUS Federation of Pakistan thr. Secretary Interior, Islamabad and others. …Respondents For the Petitioner Sardar Muhammad Latif Khan Khosa, Sr.ASC. Ch. Akhtar Ali, AOR. For the Respondents: Mr. Sohail Mehmood, DAG. Mr. M.S. Khattak, AOR (R.1-2) Mr. Razzaq A. Mirza, Addl. AG Pb. (R-4) Date of hearing 18.04.2017 O R D E R MAZHAR ALAM KHAN MIANKHEL, J.- This petition for leave to appeal has arisen out of judgment dated 01.02.2016 of the Islamabad High Court, Islamabad whereby the Intra Court Appeal of the respondent was allowed by the learned Division Bench in the following manner: “In view of the above, we hold that the petition filed by the Respondent No.1 was not maintainable under Article 199 of the Constitution. We, therefore, allow the instant appeal and set-aside the impugned order. In order to claim any entitlement under Section 12 or any grievance relating to section 9(4) of the Ordinance, the Respondent No.1 shall be at liberty to approach the Competent Authority as defined C.P.826/2016 2 in clause (C) of section 2 of the Ordinance. We expect that if the respondent No.1 makes a representation to the Competent Authority the later shall consider the same, and thereafter proceed in accordance with the law.” 2. Learned counsel for the petitioner contended that the petitioner being a convict of the Crown Court in United Kingdom was entitled to be released as he has served out much of his corporal sentence of imprisonment by extending the remissions under section 12 of the Transfer of Offenders Ordinance, 2002 (XXXVII of 2002). He further argued that the High Court has fallen into an error of law by allowing the Intra Court Appeal of respondent in this behalf. 3. Learned Deputy Attorney General while supporting the judgment of the learned Division Bench of the High Court submitted that writ petition of the petitioner to seek remissions in his sentence of imprisonment was not maintainable and was rightly dismissed by the learned Division Bench of the High Court. He further argued that the petitioner is also entitled for the remissions under the relevant law in this behalf but for that purpose he was supposed to approach the concerned authority as was asked by the High Court. 4. Learned counsel for the parties were heard and the record of the case was perused. Perusal of the record would reveal that petitioner was arrested in United Kingdom on 23.12.2003 under the offence of conspiracy to supply drugs (196 kilogram of the powder containing Cocaine). He was tried and convicted by the Crown Court of United Kingdom (U.K.) and thereby was sentenced to imprisonment for a period of twenty five years on 23.7.2004. After serving about 6 years and 28 days sentence in U.K. petitioner was transferred to Pakistan pursuant to an agreement entered into between Government of Islamic Republic of Pakistan and Government of United Kingdom of Great Britain for C.P.826/2016 3 transfer of prisoners in view of the transfer of Offenders Ordinance 2002 (XXXVI of 2002) and was admitted in Central Prison Karachi on 21.8.2010. Thereafter, he managed to get himself released with the collusion of Mr. Ali Muhammad Malik, Section Officer (Law), Government of Pakistan, Ministry of Interior, Islamabad, but was arrested again on the intervention of Government of United Kingdom of Great Britain. The petitioner-convict through Constitutional Petition had questioned his arrest and also sought his release from the prison which was partially allowed but the Division Bench of the High Court by allowing the I.C.A. set aside the impugned order passed in the Writ Petition. Hence instant petition. 5. Before we proceed further it would be worthwhile to reproduce the relevant provisions of Transfer of Offenders Ordinance, 2002 (XXXVII of 2002). 2. Definitions.—In this Ordinance, unless there is anything repugnant in the subject or context.- (a)……………………………….. (b)………………………………. (c) “Competent Authority” means the Secretary, Ministry of Interior and Narcotics Control (Interior Division) or any other person as the Competent Authority may be notified in official Gazette, authorize to exercise powers and perform functions, of the Competent Authority under this Ordinance; (d) ……………………………. .. .. AND “9. Inspector-General of Prisons to have the custody of an offender transferred to Pakistan.- (1)Every offender being transferred to Pakistan from any specified country, upon an order under Section 4 shall be formally handed over to the Inspector C.P.826/2016 4 nominated by the Competent Authority and the concerned Inspector-General of Prisons shall have the authority to keep such offender in custody in any place as may appear to him to be appropriate for giving effect to the sentence of imprisonment imposed on such offender in such specified country for the period of the sentence as if it were a sentence imposed by a Court in Pakistan. (2) The enforcement of the sentence of imprisonment imposed on any offender who is transferred to Pakistan under sub-section (1) shall be governed by the laws of Pakistan. (3) Notwithstanding anything contained in sub- section (2) the Competent Authority shall, unless otherwise specified in the agreement, be bound by the legal nature and duration of the sentence of imprisonment imposed on any offender transferred to Pakistan under sub-section (1). (4) Where the legal nature and duration of the sentence of imprisonment imposed on any offender transferred under sub-section (1), is incompatible with any law of Pakistan, it shall be lawful for a Court of competent jurisdiction in Pakistan to adopt such sentence to make it compatible with laws of Pakistan provided however that the sentence as adopted by such Court in Pakistan corresponds, as far as practicable, to the sentence imposed on such offender in the specified country from which such offender was transferred to Pakistan. AND 12. Remission and President’s powers to grant pardon.—(1) An offender who is transferred to Pakistan in terms of section 9 shall be subject to any remission of the sentence of imprisonment, imposed on him in the C.P.826/2016 5 specified country where he was convicted, to which he may have become entitled to on the date of his transfer in accordance with the laws relating to remission of a sentence in force in such specified country. 2. Nothing in this Ordinance shall be so construed as to limit or take away the power of the President to grant pardon or remission of sentence to any offender under Article 45 of the Constitution of the Islamic Republic of Pakistan or by any other authority under any law of Pakistan for the time being in force.” (Emphasis supplied) 6. Perusal of the above provisions of law regulating the Transfer of Offenders would reveal that the convict by competent Court of Law of specified country can be transferred to Pakistan pursuant to mutual agreement between the two countries and if the convict is transferred to Pakistan then he would be governed by the laws of Pakistan as if it was a sentence imposed by a Court in Pakistan and in case the sentence awarded to the convict is not compatible with the laws of Pakistan, a Court of competent jurisdiction in Pakistan can adopt such a sentence to make it compatible with the law of Pakistan. As far as pardon/remissions in the sentence of imprisonment awarded to an Offender is concerned, it can also be granted/extended to him under the Laws of Pakistan and he can also claim any remission of his sentence of imprisonment to which he became entitled to on the date of his transfer in accordance with law relating to the remissions of sentence in such specified country. When we asked the learned Senior ASC, is there anything in black and white to reflect that the offender had earned any remission during his imprisonment in U.K, he could not lay hand on any such order of the concerned authorities in U.K. We also asked the learned Senior ASC as to whether the offender was ever refused any remission, he had C.P.826/2016 6 earned, while serving his sentence of imprisonment in Pakistan but again he was unable to refer to any such refusal. Yes; the petitioner has to be dealt with under the law of the land to serve out his remaining sentence as provided in section 9(2) of the Transfer of Offenders Ordinance, 2002 (XXXVII of 2002) which also makes him entitled for grant of pardon or remission of sentence by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan or by any other authority under any law of Pakistan for the time being in force as provided in Section 12(2) of the Transfer of Offenders Ordinance, 2002 ( XXXVII of 2002) but for that purpose he has to approach the concerned authority as defined in the Law to ask for the relief. 7. For what have been discussed above we are of the considered view that the learned Division Bench of the High Court while handing down the impugned judgment has not committed any illegality or irregularity. Resultantly, this petition having no merits is hereby dismissed and the leave asked for is refused. 8. The above are the reasons for our short order of even date which reads as under:- “For the reasons to be recorded later, this petition being without merit is dismissed.” Judge Judge Judge Bench:-III Islamabad April 18, 2017 Approved for reporting (Saeed Aslam)

{'id': 'C.P.L.A.826_2016.pdf', 'url': ''}

{'id': 'C.P.L.A.826_2016.pdf', 'url': ''}

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.84-P of 2015. (On appeal from judgment dated 22.1.2015, of the Peshawar High Court, Peshawar, passed in W.P. No.3258 of 2013). Sarhad Development Authority through its Chairman. …Petitioners. VS Syed Muhammad Latif Shah and others. …Respondents. For the petitioners: Mr. Muhammad Ijaz Sabi, ASC. For the respondents: N.R. Date of hearing: 25.3.2015. JUDGMENT AMIR HANI MUSLIM, J. – This Petition for leave to Appeal is directed against judgment dated 22.1.2015, passed by the Peshawar High Court, Peshawar, whereby Writ Petition filed by the Respondent No.1 was allowed and the Notification of Promotion of the Respondent No.9 was struck down. 2. The facts necessary for decision of the present Petition are that the Respondent No.1 filed Writ Petition before the Peshawar High Court, praying therein to set aside the Notification of Promotion of the Respondent No.9 against the Post of General Manager (Administration) (BS-19) being C.P.No.84-P/2015. 2 violative of the Sarhad Development Authority (Appointment of Employees) Rules, 1977 framed under the Sarhad Development Authority Act 1973. The Respondent No.1 pleaded in the Writ Petition that he was the senior most BS-18 officer of Managerial Cadre in the Sarhad Development Authority (hereinafter referred to as the Authority) and Promotion of the Respondent No.9, who belongs to the Finance Cadre, was against the said Rules. At the relevant time the Respondent No.1 was working as Industrial Estate Manager (BPS-18) in the Managerial Cadre in the Export Processing Zone Risalpur and was posted against the post of General Manager (Administration) Sarhad Development Authority, keeping in view his seniority in the Managerial Cadre. However, the Departmental Promotion Committee in its meeting recommended the Respondent No.9 for promotion to the post of General Manager (Administration). Accordingly the notification for promotion of the Respondent No.9 was issued in compliance with the minutes of the meeting of the Departmental Promotion Committee. 3. Feeling aggrieved, the Respondent No.1 filed departmental Review Petition against the order of the Departmental Promotion Committee, which was turned down by the Competent Authority, by order dated 2.11.2013. Therefore, he filed Writ Petition before the Peshawar High Court, which was allowed as stated above. Hence this Petition for leave to Appeal. 4. The learned Counsel for the Petitioner has contended that the learned High Court has wrongly entertained the Writ Petition filed by the Respondent No.1, as the Sarhad Development Authority (Appointment of Employees) Rules, 1977 are non-statutory in nature and the Employees of C.P.No.84-P/2015. 3 the Sarhad Development Authority are governed by the principle of Master and Servant. He next contended that the Sarhad Development Authority (Appointment of Employees) Rules, 1977, were not notified as required by Section 29 of the Sarhad Development Authority Act, 1973, therefore, the High Court has no jurisdiction to adjudicate upon the service matters of the employees of the Authority. 5. He further contended that the Respondent No.9 is the senior- most BS-18 officer of the Sarhad Development Authority and the Departmental Promotion Committee has rightly recommended his name for promotion to the post of General Manager (Administration) (BS-19) which is to be filled in by promoting the senior most officer of BS-18 of the Authority. 6. We have heard the learned Counsel for the Petitioner and have perused the record. The Petitioner-Authority is created by Sarhad Development Authority, N.W.F.P Act No.IX of 1973, promulgated on 12.1.1973. Section 29 of the Act provides:- “29 (1) Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the generally of the foregoing powers, such rules may provide for – (a) the manner of keeping accounts of the Authority and the companies managed by it; (b) the recruitment of officers, advisers and employees of the Authority; © the terms and conditions of service of the officers, advisers and employees of the Authority, including the functions of the advisers; C.P.No.84-P/2015. 4 (d) the borrowing by the Authority. (e) the purchase and sale of good by the Authority; (f) the date by which and the form in which, the annual budget statement shall be submitted in each year; (g) the procedure for appropriation and re- appropriation of moneys returns, at the credit of the Authority; (h) the form and manner in which and the authorities to whom returns, reports or statements shall be submitted; and (i) such other matters relating to the administration of the affairs of the Authority as Government may think fit to regulate by rules; 7. From 1973 till date, the Government of KPK has failed to frame Rules in terms of Section 29 of the Act inclusive of the Rules for recruitment of the Officers, Advisors and employees of the Authority. The Government was further required to frame Rules pertaining to the terms and conditions of services of the officers and employees of the Authority. This omission, prima facie, shows that the Government, in absence of the proposed Rules is regulating the service of the Petitioner-Authority by exercising its unstructured discretion in recruitment/promotion of officers and employees in the Authority. We, therefore, direct the Government of KPK to comply with the provisions of Section 29 of the Act within three moths from the date of this judgment and submit compliance report to the Registrar of this Court for our perusal in Chambers. 8. The Petitioner-Authority is bound by its own Rules which categorize different Cadres in the service of the Authority. In the case in hand, the exercise of jurisdiction by the High Court is immaterial, as the officer who is aggrieved by the impugned judgment has not challenged it C.P.No.84-P/2015. 5 before this Court. The grant of leave by this Court under Article 185 (3) of the Constitution is discretionary. By the impugned judgment, the learned High Court has resolved the issue of promotion between the two individuals which has no bearing over the Petitioner-Authority. It is the aggrieved officer who could have approached this Court. The Petitioner-Authority has no locus standi to invoke the jurisdiction of this Court and is bound by its own Rules, which permit the Respondent No.1 to be promoted under its rules as has been determined by the learned High Court. 9. In the peculiar facts and circumstances of the case, we are of the view that our interference in the impugned judgment would perpetuate injustice and, therefore, we are not inclined to intervene. For the aforesaid reasons, this Petition being misconceived is accordingly dismissed and leave declined. A copy of this judgment be sent to the Chief Secretary and Advocate General, KPK, for the information and compliance of the direction contained in para 7 above of the judgment. Chief Justice Judge Judge Islamabad the, 25th March 2015. Approved for Reporting. Sohail/**

{'id': 'C.P.L.A.84-P_2015.pdf', 'url': ''}

{'id': 'C.P.L.A.84-P_2015.pdf', 'url': ''}